Leggara & Oncins - [2021] FamCA 71

FAMILY COURT OF AUSTRALIA
Leggara & Oncins [2021] FamCA 71

File number(s): CAC 2154 of 2017

Judgment of: GILL J

Date of judgment: 19 February 2021

Catchwords: FAMILY LAW – CHILDREN – with whom child lives – international relocation – best interests of the child – where the mother lives in a European country – where the child lives with father in Australia – where each parent accepts parenting capacity of other parent – where each parent intends to remain in their country of residence – capacity and willingness of each parent to support the relationship with the other parent – mother’s non-compliance with Court orders in the European country and Australia – mother’s partner’s attitude to the father – implications of the uncertainty regarding the father’s pursuit of an Australian visa – issues regarding enforcement of Australian orders in the European country.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(3)(b), 60CC(3)(f), 60CC(3)(j), 65DAA

Cases cited:
Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No. 3) [2007] FamCA 1364

Mazorski v Albright (2007) 37 Fam LR 518

Morgan & Miles (2007) FLC 93-343

Taylor and Barker (2007) FLC 93-345

Number of paragraphs: 198

Date of hearing: 30 November 2020 – 4 December 2020

Place: Canberra

Counsel for the Applicant: Mr Duane

Solicitor for the Applicant: Farrar Gesini Dunn

Counsel for the Respondent: Ms Davis

Solicitor for the Respondent: Elringtons

Counsel for the Independent Children's Lawyer: Mr Stagg
ORDERS

CAC 2154 of 2017

BETWEEN:
MR LEGGARA

Applicant

AND:
MS ONCINS

Respondent

LEGAL AID

Independent Children’s Lawyer

ORDER MADE BY:

GILL J

DATE OF ORDER:

19 FEBRUARY 2021

THE COURT ORDERS:
1.The child, X, born … 2015 shall live with the father.
2.The father has sole parental responsibility in relation to X.
3.That in relation to the exercise of sole parental responsibility, prior to making a decision about any major long-term issue the father shall:
(a)Consult with the mother with a view to reaching agreement with her about the issue;
(b)Take into account the mother’s views about the issue; and
(c)Notify the mother in writing as soon as he has made his decision.

4.That X shall spend time with the mother as follows:
(a)In Spain, for four weeks during each ACT school holiday period occurring at the end of Term 4, commencing in Term 4 of 2021, on dates and times as agreed between the parties, and failing agreement, as follows:
(i)In 2021 and each alternate year thereafter, from the first Wednesday following the last week of Term 4, and for a period of four weeks thereafter;
(ii)In 2022 and each alternate year thereafter, from 29 December and for a period of four weeks thereafter; and

(b)It is noted that the father intends to travel to Spain with X for the purpose of facilitating the time between X and the mother.
(c)In the event the mother elects to travel to Australia, the father shall facilitate the mother spending time with X in Australia, and the following shall apply:
(i)The mother shall provide written notice of her intention to travel to Australia at least 30 days prior to her intended date of arrival in Australia, and shall provide the father with her dates of arrival in, and departure from, Australia as well as her address for her intended stay in Australia; and
(ii)The mother shall spend time with X on an equal shared care arrangement on dates and times as agreed between the parties in writing, and failing agreement, on a week about basis, with changeover occurring each Friday after school (or 3:00 pm on a non-school day), with the mother spending the first Friday after her arrival in Australia, with X.

(d)The father shall facilitate X communicating with the mother each alternate day via WhatsApp video calls (or an alternative agreed video call communication app), with the father to initiate the call, at the following times:
(i)During daylight savings at 8:00 am Australian time; and
(ii)When daylight savings ends until such time daylight savings resumes, at 7:30 pm Australian time.

Flights
5.That for the purpose of these Orders, in the event X is required to travel to facilitate Orders 4 above, the following shall apply:
(a)The mother shall be responsible for booking X’s return flight tickets on the relevant dates to ensure that X’s time with the mother can commence on the day as set out in these Orders;
(b)In the event there are no flights available permitting changeover to occur at the stipulated times set out in Order 4, unless otherwise agreed between the parties in writing, the mother shall book the flight that arrives at the changeover location at the closest time available to the changeover time;
(c)Unless otherwise agreed between the parties in writing, the mother shall book economy class flight tickets and it is noted that she shall use her best endeavours to book cost effective tickets;
(d)The parties shall each pay 50 per cent of the costs of X’s flight tickets, and for that purpose the mother shall pay the costs of the ticket upfront, and the father shall reimburse her 50 per cent share to the mother within 14 days of receipt of the tax invoice from the mother;
(e)The mother shall notify the father that she acquired the flight tickets and provide copy of same no less than 60 days before the date of the scheduled flight to the country where the mother lives.

If the parties live in the same country
6.That in the event the father and the mother live within 70km of each other in the same country, noting that the father’s position is that this will only be the case if he is unable to maintain a right to live in Australia (due to his visa requirements) or the mother relocates to Australia, Orders 7 to 9 shall apply.
7.That the parents shall have equal shared parental responsibility for the X.
8.That X shall live with each parent on an equal shared care arrangement as agreed between the parties in writing, or failing such agreement, as follows:
(a)During school terms, changeover to occur each Friday after school (or 3:00 pm if the Friday is a non-school day);
(b)During school holidays as follows:
(i)In even numbered years, X shall spend the first half of each school holiday period with the mother and the second half of each school holiday period with the father; and
(ii)In odd numbered years, X shall spend the first half of each school holiday period with the father and the second half of each school holiday period with the mother:

(c)During special days as follows:
(i)On Father's Day, in the event X is not already in the father's care pursuant to the above Orders, X shall spend time with the father from 9:00 am to 5:00 pm;
(ii)On Mother’s Day, in the event X is not already in the mother’s care pursuant to the above Orders, X shall spend time with the mother from 9:00 am to 5:00 pm;

(d)On X’s birthday:
(i)In the event X is in the father’s care pursuant to the above Orders, the mother shall be permitted to spend time with X, from after school until 6:00 pm on a school day, or from 10:00 am until 1:00 pm on a non-school day; and
(ii)In the event X is in the mother’s care pursuant to the above Orders, the father shall be permitted to spend time with X from after school until 6:00 pm on a school day or from 10:00 am until 1:00 pm on a non-school day.

(e)During the Christmas period, in addition to the arrangements set out in the above orders, as follows:
(i)In even numbered years:
Ai.From 2:00 pm on Christmas Eve until 2:00 pm on Christmas Day with the father; and
Aii.From 2:00 pm on Christmas Day until 2:00 pm on Boxing Day with the mother.

(ii)In odd numbered years:
Ai.From 2:00 pm on Christmas Eve until 2:00 pm on Christmas Day with the mother; and
Aii.From 2:00 pm on Christmas Day until 2:00 pm on Boxing Day with the father.

9.That each parent shall facilitate X communicating with the other parent by phone and/or video call, at times as agreed between the parties in writing, and failing agreement, each Monday and Wednesday between 5:00 pm and 6:00 pm.

Restraints
10.That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to X or in the presence of X and shall do all things reasonably necessary to remove X from any environment in which the other parent and/or their friends or family are being denigrated in the presence of X.
11.That each parent be restrained by injunction from passing information or messages through X to the other parent.
12.That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with X.

Information sharing
13.Each parent shall inform and keep the other parent informed regarding aspects of X's care, welfare and education including the school X attends and X’s family doctor.
14.That both parents shall authorise by these Orders any day care, preschool and/or school attended by X, to provide to either parent, upon request, any reports, information or photos relating to child, at the requesting parent’s cost.
15.That the parents shall authorise by these Orders any of X’s General Practitioner or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to X at that parent’s cost (if any).

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leggara & Oncins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
GILL J:
INTRODUCTION

These proceedings concern the parenting arrangements for X, born in 2015, the child of Mr Leggara (‘the father’), and Ms Oncins (‘the mother’). Although X was born in, and currently lives in Australia, he, like both of his parents, is Spanish. The case is conducted under circumstances where the father lives in Australia, the mother in Spain. Each parent sees advantages to themselves and to X in relation to where they live, and each conducts the proceedings on the basis that they will remain, so far as they are able, to live in separate countries.
The further context of the case is that, although each parent has been critical of the other, each accepts in large part that the other has the capacity to parent X. The cases each mounted were not based on a premise that there was a deficit in the relationship the other party has with X, or, in most respects, an inability to care for X. This position is in the context that although X has spent extended periods away from each parent, each accepted that X loves the other, has a good relationship with the other and misses the other when separated from him or her. The strength of relationships, and general capacity to parent were reflected in the position advanced by each that should the parties live in reasonably close proximity to each other that they should equally share the care of X.
Despite this commonality, and their general agreement as to arrangements should either of them be unsuccessful in their applications, there is a poor and hostile relationship between the parents.
Further necessary context is that one of the periods of separation of X from a parent was effected by the mother’s contravention of orders and retention of X in Spain, accompanied by her staunch resistance to X’s return to Australia.
Without now reciting all the factual ground covered in the trial, in large part the trial emphasised four factual matters:
a.The capacity and willingness of each parent to support the relationship with the other parent;
b.The mother’s non-compliance with Court orders, both in Spain and Australia;
c.The mother’s partner’s attitude to the father; and
d.The implications of the uncertainty regarding the father’s pursuit of an Australian visa.
Material relied upon
The applicant father relied upon:
(a)His Amended Initiating Application filed 4 September 2020;
(b)His affidavit filed 7 May 2020;
(c)His affidavit filed 26 August 2020;
(d)Affidavit of Mr C filed 23 July 2020;
(e)Affidavit of Mr D filed 27 July 2020;
(f)Affidavit of Ms F filed 7 May 2020; and
(g)Affidavit of Ms F filed 27 August 2020.
The respondent mother relied upon:
(a)Her Amended Response to Final Orders filed 4 November 2019;
(b)Her affidavit filed 7 July 2020;
(c)Affidavit of Ms G filed 7 July 2020;
(d)Affidavit of Mr H filed 7 July 2020; and
(e)Affidavit of Mr M filed 28 October 2020.
The Independent Children’s Lawyer (‘the ICL’) relied upon:
(a)Case outline filed 27 November 2020;
(b)Affidavit of Mr J filed 22 October 2020; and
(c)Affidavit of Mr J filed 27 November 2020.
The parties’ relationship
The parties commenced a relationship in 2008 while in Spain and commenced cohabitation in May 2010. The parties moved to Australia in 2012. They returned to Spain to marry in 2013. While the mother states that the parties separated on 11 October 2017, following which she commenced proceedings in Spain for divorce, the father states that the parties separated in November 2017. Nothing turns on this dispute. On 24 November 2017, the father commenced these proceedings in the Federal Circuit Court. On 21 May 2018, the mother returned Spain and has, to date, remained living there with no intention to return to live in Australia.
The parties both described deciding to move to Australia together. They agreed that they had both come with independent student visas. The mother said that the parties came to Australia to study and for the duration of those studies only. The mother said that the parties had to have return tickets or they would not have been let into the country. She denied that the couple had told everyone at family gatherings that they were moving to Australia to live there, and was supported by the evidence of other witnesses on this point. The mother said that she was very clear and had told the father that they would be in Australia for a maximum of five years and that at various points they discussed the possibility of returning to Spain. The father said that when they left Spain in 2012 the parties were convinced that Australia would be their home. He disagreed that the parties intended to go back.
It should be accepted that the parties had not determined that they would permanently move to Australia when they left Spain. Although their intentions shifted while in Australia, it has not been established that they ever held a joint intention of permanently remaining in Australia. It has not been established that at any stage the mother agreed to a permanent life in Australia. This aspect did not bear significance, however, in determining X’s best interests.
Care for X during the relationship
Given the acceptance by each of the parties as to the other’s general capacity to care for X; the positive nature of X’s relationship with each and their position that there should be shared care if they are in the same country, it is not necessary to descend into a detailed analysis of X’s care arrangements prior to and immediately following the breakdown of the parties’ relationship.
However, the parties did traverse a number of matters from this time.
At [61] of the mother’s affidavit, the mother alleges that “from the time of his birth, I became X’s primary carer attending to all aspects of his care including to supervise him, bath him, feed him, getting up for him in the middle of the night when he walked up, taking him to the baby clinic for the usual check-ups when he was a baby, taking him to doctors for vaccinations, caring for him when he was sick, enrolling him at day care, delivering him to day care and collecting him.”
Three months after X was born, the mother returned to work three days a week from 7:00 am to 3:30 pm and X was enrolled at a day care centre.[1]
[1] Mother’s Affidavit [63]
Although the mother was critical of the degree of support offered by the father in caring for X, this contrasted with her positive description of the father’s support to her general practitioner.
The father accepted the mother’s description at [66] and [72] of her affidavit that he worked long hours and would be out of the house “a lot during the week and also on weekends.” However, the mother also accepted that the father would do the cooking, shopping, the washing of clothes, change nappies, give X his bottle, play with X (with the mother) on the floor and shower with X when X was older.
The father was critical of the mother following X’s birth. Notes recorded by the mother’s general practitioner record, and the mother accepts, that she suffered a period of post-natal depression, and experienced thoughts in relation to harming X. While she had experienced such thoughts, sensitive cross-examination on this point revealed that they were thoughts feared by the mother, that the thoughts did not represent who she was, and that she found the thoughts distressing. It was established that there was no intent on the part of the mother to harm X.
It should be noted that despite the father harbouring some concerns about the mother’s capacity, the mother was left with the significant care of X whilst the father worked.
There is no ongoing significance of this period of post-natal depression, or the father’s then concerns about capacity in relation to the mother’s current capacity to care for X.
The parties accepted that each had raised their voice at the other during arguments.
The mother was also critical of alleged controlling behaviour by the father. The mother explained that her positive descriptions of the father to her general practitioner came before her realisation (aided by interaction with a support group) that the father was controlling.
In particular, the mother alleged, and the father denied, that he had engaged in financially controlling behaviour. The parties were in tight financial circumstances in Australia during their relationship. Although the father initially denied that the mother had accused him of financial control until post separation, he later accepted that it was a matter raised by the mother months prior to their separation. The father accepts that the mother may have interpreted their interactions over their finances as controlling. In any event the mother’s position was that this was not going to be an issue moving forward.
However, it remained unclear that there was any attempt by the father to control the mother.
The father also complained that the mother behaved in a manner manipulative of X after separation under the one roof, causing X to sleep with her rather than with the father. Those circumstances were not clearly established.
These matters may have carried weight in the event that either party challenged, in a general sense, the capacity of the other party to care for X, or alleged an ongoing significance of previous incidents of control. However, they do not. Despite this conclusion, and despite the history of their difficulties, they each conducted their case on the basis that each has a positive relationship with and the general capacity to care for X. The evidence does not paint a clear picture of control, or of significant deficits on the part of either party. It does, however, support a conclusion that was rendered apparent during the trial. These parties have a very poor relationship, with limited capacity for cooperation.
Care for X post separation

Post-separation, from October 2017 until 21 May 2018, X primarily lived in an equal shared care arrangement in Australia as per the orders of Judge Tonkin on 18 December 2017. The orders provided for equal shared parental responsibility and equal time with the parents.
On 17 May 2018, an Order was made that allowed the mother to take X to Spain on 21 May 2018 and required that she return with him to Australia by 20 June 2018.
The mother travelled with X to Spain, but failed to comply with the order to return, and X remained in Spain until 11 July 2019, when an Order was executed for X to be returned to Australia to live with his father.
When the mother and X first arrived in Spain, they lived with the maternal grandparents and the mother’s brother. On 12 November 2018 she and X moved into independent accommodation.
Given the retention of X in Spain, X did not spend any time with his father between 21 May 2018 and 11 July 2019. While X did not spend any time with his father, for the majority of this period, X communicated with his father at least every second day. Once orders were made by the Spanish Court in October 2018 X spent time with his paternal grandparents every second day until X was retrieved by the father in July 2019.
Circumstances of X’s retention in Spain
The circumstances of X’s retention in Spain contrary to the orders of the Family Court of Australia loomed large in the proceedings, as a matter relevant not only to anticipated compliance or non-compliance by the mother with the orders of this Court, but also in what they reveal about the mother’s attitude to X’s relationship with the father. The progress of the proceedings in Spain and the manner of the mother’s conduct in relation to those proceedings speaks to those issues.
The father called his Spanish lawyer, Mr D, as a witness in these proceedings. He gave largely unchallenged evidence as to the conduct of the proceedings in Spain, which spanned the Court of First Instance no.3 in N Town (Q City), the Court of First Instance no.26 in Q City and the High Court of Q City. The proceedings before each of the courts are summarised below, along with relevant aspects of the proceedings before the Federal Circuit Court of Australia and the Family Court of Australia.
The father commenced proceedings in the Federal Circuit Court of Australia on 24 November 2017.
Civil proceedings in Spain first began when the mother brought a civil lawsuit against the father in January 2018 in the Court of First Instance no.3 in N Town (Q City). The father lodged a motion to contest the competency of the court to hear the matter. On 6 April 2018 the court ruled that it was not competent to hear the case and that the Australian courts were the appropriate jurisdiction.
The mother lodged and then withdrew an appeal in relation to this determination.
The mother then lodged a petition for divorce before the Court of First Instance no.26 in Q City. On 14 January 2019, the court sustained the father’s disputing of jurisdiction.
On 20 April 2018, the mother’s application for an Australian visa was rejected. The mother immediately booked a flight to fly to Spain on 21 May 2018 (mother’s affidavit [158]).
The mother then sought orders from the Family Court of Australia to permit her to take X to Spain for a limited period. Her application was filed on 11 May 2018. The father initially resisted the mother travelling at all, but ultimately told the Court that he agreed to her travelling. He sought that her time be limited to a trip of three weeks.
On 17 May 2018, orders of Austin J permitted the mother to remove X from Monday 21 May 2018 until 5.00 pm on Wednesday 20 June 2018. The mother travelled to Spain with X on the first day that the orders permitted her to.
The mother flew X to Spain on a one-way ticket, without having secured a return ticket. She said that she did this as she was unable to afford a return ticket for X. At the same time, the mother obtained funding from her family to enable her to attend upon a divorce lawyer promptly on her arrival in Spain. She accepted that she may have secured the appointment with the Spanish lawyer prior to her departure from Australia.
The mother denied that the prompt meeting with the lawyer related to an intent to retain X, saying that such an intent did not crystallise until shortly prior to his ordered return date of 20 June 2018.
During the first week after arriving in Spain, the mother secured employment for herself.
The father’s Australian lawyers emailed the mother’s lawyers on 20 June 2018 to remind the mother of her obligation to return X.
On or about 20 June 2018, the mother’s Spanish lawyers, through the mother’s then Australian lawyers, advised the father that X was not going to be returned and that the mother did not intend to return to Australia despite the orders of 17 May 2018. The mother accepted that she knew that she was breaching the Australian orders at this point. The mother provided four reasons, being alleged family violence; a lack of home, employment or government assistance in Australia for the mother; an allegation that the mother had been coerced by Austin J into accepting the jurisdiction of the Australian court, and that she had work in Spain.
The father filed an application through the Australian Central Authority. Mr D said that no judicial petition was lodged by the Spanish Central Authority.
The father also initiated proceedings in Spain for X’s return before the Court of First Instance no.26 in Q City on 17 September 2018 when the father lodged a claim for the return of a minor under the Civil Procedure Act, in accordance with the Hague Convention on the Civil Aspects of International Child Abduction. This lawsuit was given leave to proceed on 19 September 2018.
A first hearing, scheduled for 21 September, was adjourned as the mother had not been notified. It was rescheduled for 27 September.
The second hearing of the proceedings with the Public Prosecutor also being a party to the proceedings was held on 4 October 2018, and on 8 October, the court issued an order.[2] This held that the mother’s holding of X was illegal and mandated that he be returned to his place of abode in Canberra within ten days from the date 18 October 2018, unless the mother decided that the father would take the child to Australia. The mother was ordered to pay for X’s travel and the father’s legal costs.
[2] Also [88] of the father’s affidavit filed 7 May 2020; Annexure SL2
On 4 October 2018, the Spanish court directed the handing over of X’s passport to the Spanish court and visitation rights for his paternal grandparents on alternate days between 1:00 pm and 5:00 pm. Until this time, the mother had refused to allow for the paternal grandparents to have time with X. Following this, save for minor examples, the mother complied with the Orders and X spent time with the paternal grandparents each alternate day.
The mother lodged an appeal against the court order on the abduction of a minor on 8 October 2018 before the High Court of Q City. The father received notification from the court about this appeal on 25 October 2018 and objected to the appeal. The court sought, but did not obtain a report from the Australian Embassy regarding the visa status of X.
On 5 December 2018 the father obtained an order from the Family Court of Australia to enable him to obtain a visa for X.
A hearing was held in the Provincial High Court on 23 January 2019 and an order was issued on 19 February 2019. This order dismissed the mother’s appeal, confirmed the decision of 8 October, confirmed that X had been abducted and ratified the obligation to return X at the mother’s expense or with the father accompanying X.[3]
[3] Interpreter affidavit; Father’s affidavit filed 7 May 2020 [95]
The mother did not comply with the orders of 19 February 2019.
The Provincial High Court issued an order dated 10 April 2019 that only the contested divorce proceedings (regarding the parties’ marital status) be heard in Spain. The court confirmed that the ‘preventative measures’ regarding X must be heard by the Australian courts.
On 13 May 2019, the Provincial High Court issued a decision rejecting the mother’s application for dismissal. The father informed the court that the mother had not complied and the Provincial High Court made subsequent orders on 24 May 2019 giving the mother a further ten days to return X or five days to communicate any change in circumstances to the court.[4] The mother did not comply with this order.
[4] Father’s affidavit filed 7 May 2020 [96], Annexure SL6
On 7 June 2019, the mother was given a further 20 days to comply with the orders to return X and file travel details with the court within five days[5]. The mother did not comply with this order.
[5] Father’s affidavit filed 7 May 2020 Annexure SL7
The mother opposed the enforcement of the court order regarding X’s return. In a report dated 14 June 2019, the Public Prosecutor supported the father’s application for enforcement. In a resolution dated 17 June 2019, the Court of First Instance no.26 in Q City sustained the enforcement application and ordered the mother to comply with the order on X’s return.
The court also ordered on 26 June 2019 a writ of enforcement permitting the father to collect X and return him to Australia and providing the father with X’s passport.
On 28 June 2019, the Court of First Instance no.26 in Q City issued a decision dismissing an administrative appeal for review lodged by the mother. A resolution regarding another appeal was still pending at the date of the Australian trial.
In 2019, the mother commenced a petition on social media about the court proceedings and the situation from the mother’s point of view titled ‘if you go to Spain, you will end up losing your child’.[6] The mother additionally appeared on the N Town television news and gave newspaper interviews about the court proceedings. The mother alleges that her lawyer suggested that she should go to the media. She further states that she did not purposely give any inappropriate information to the media about the court case.
[6] Annexed to the father’s affidavit at SL9, p 77
The father travelled to Spain to collect X on 8 July 2019. He did not advise the mother that he had done so in order to prevent interference with his removal of X. The father obtained X when he was visiting the paternal grandmother.
The father provided the Spanish court with copies of the airline tickets for himself and X on 11 July 2019.
On 11 July 2019, whilst attempting to check in for the flight at the Q City airport, two federal police officers approached the father and said that “there has been a report of child kidnapping”. The father alleges that the police informed him that “Ms Oncins has arrived at the airport. To avoid causing a scene, we are going to take you through private security”.[7]
[7] [131] of father’s affidavit
Also, while in transit at R City airport, the father was notified by his lawyer, Mr D, that the mother had filed an application with an on-duty court after hours, seeking to prevent the father and X from boarding the flights to Australia. Two hours later, the father was notified that the application was dismissed.[8]
[8] [132] of father’s affidavit & SL11 of father’s affidavit
The father returned with X to Australia on 13 July 2019.[9]
[9] Father’s affidavit filed 7 May 2020 [99]-[100]
On 12 December 2019, the Spanish court concluded the divorce proceedings with an order that made a ruling on the parties’ marital status and did not issue any measures regarding X on the basis of a lack of jurisdiction.
At the date of the Australian trial, a claim by the father for legal costs and X’s travelling expenses was being heard by the Court of First Instance no.26 in Q City.
The proceedings in Spain highlighted both the mother’s non-compliance with Australian and Spanish orders and her determination to retain X in Spain. She took repeated and unsuccessful proceedings, repeatedly disregarding orders for X to be returned. That determination to retain X in Spain continued even as the father was seeking to leave Spain with X in accordance with the authority of the Spanish courts. Orders made by both the Australian and Spanish courts proved insufficient to persuade the mother to return X to Australia.
The mother now agrees that the retention of X in Spain was “bad,” saying that she is “really sorry” as she has been through it herself now, observing it to be “really horrible” and saying that it was hurtful to X.
X’s circumstances following his return to Australia
Since his return in July 2019 X has remained in the primary care of his father, until the mother travelled to Australia shortly before the final hearing in October 2020, at which stage the parties cooperated in an equally shared arrangement pending her return to Spain following the hearing. The father has had the assistance of his mother living with he and X for much of the time since the return.
Between July 2019 and October 2020, in general, X and the mother communicated by electronic means each alternate day. The mother was critical of a number of aspects of those communications.
The first criticism was the delay of a little over a week between X’s removal from Spain and the first electronic contact for X with the mother. The father explained that there were a number of days in transit, followed by a number of days settling back in to explain the delay.
The mother sets out a number of other features of the communication.[10] She states that during the calls from X via WhatsApp on 31 July 2019, 8 August 2019, 14 August 2019 and 24 August 2019, the father told X to end the call after 13-21 minutes. On 18 August 2019, the mother alleges that X began to cry when he saw her face on the screen.
[10] [229] and following of her affidavit
The mother also says that during the last call (before the trial) on Saturday 2 November, X said words to the effect: “Dad and Grandma both said that I am not going back to Spain ever.”
The father accepted these descriptions made by the mother, accepting that they formed an accurate portrayal of what X said.
It may be observed that these criticisms are of a small portion of the communications between X and the mother and are not suggestive of an ineffective regime to maintain the relationship between the mother and X by electronic communication.
The mother returned to Australia in advance of the trial, allowing her to spend time with X and to take part in the assessment by the family consultant. The parties, with the assistance of the ICL, came to an agreement to share time, roughly on an equal basis following a short introductory period.
The parties agreed that on X seeing the mother for the first time he ran to her for a hug, saying “mummy I really wanted to see you.”
Troublingly, X has said to the mother “I am more Australian than Spanish” and “my father prefers Australia.” Both the mother and the family consultant thought that this was likely referable to X overhearing conversations between adults about his circumstances.
Although there were some difficulties in relation to X transitioning between the parents, including a reluctance to transition to the father following his first visit to the mother, the parents were able to navigate those difficulties cooperatively, and without apparently adverse impact upon X.
Effect of these proceedings on jurisdiction in Spain
Mr D was also examined by the parties as to the significance of the Australian proceedings to the Spanish courts.
Mr D asserted that although the court placed weight upon the orders of the Family Court of Australia, the orders of the Family Court of Australia were not upheld by the court in Spain, but rather that the determination was that X should return to Australia. He said that the Spanish court determined that the Spanish court had no jurisdiction as X’s habitual domicile was Australia and that prior to removal, X was in Australia. The determination of the Spanish court was that Australian courts should determine the matter.
Mr D said that there is no mechanism for the registration of Australian court orders in Spain. He further said that Spanish courts would decline to exercise jurisdiction to enforce orders of the Family Court of Australia on the basis that the Spanish court would not be competent to judge matters concerning X, as opposed to matters concerning the two parents. He said that the position would not change if X was living in Spain.
Mr D said that while the Spanish court would respect the orders of the Family Court of Australia, it would be difficult or impossible to force compliance with the orders in Spain, that enforcing compliance is “complicated.”
For the orders to be enforced, Mr D said that it would be necessary for the orders of the Family Court of Australia to be “homologated,” although it was not established how this might be achieved. He identified that in seeking homologation, an issue would still arise as to whether the Spanish court firstly considered itself competent, and secondly determined that the orders should be homologated.
While Mr D said that homologation became more straightforward with the consent of both parties, no party proposed a mechanism for ensuring that the orders were homologated in Spain. He said that there was no option for mirror consent orders.
In the absence of homologation, Mr D asserted that there would be no Spanish law applicable to X due to the making of orders by the Family Court of Australia. He said that the Spanish courts could not exercise jurisdiction because the decision has already been taken in Australia, and that this would not change even if X became habitually resident in Spain.
In summary, the position is that if orders are made by the Family Court of Australia, there is no means to ensure enforcement of those orders, the Spanish courts lose jurisdiction, mirror consent orders are not available in Spain to buttress the Australian orders, there is no clear pathway to homologation of the Australian orders in Spain, and the parties proposed no mechanism to achieve homologation.
Absent contradictory evidence I accept the assertions of Mr D.
The visa evidence
The parties sensibly engaged a single expert to deal with the migration and visa related issues in this case that impact whether either parent, or X, are able to remain in Australia, and able to do so indefinitely. The expert prepared two reports, the second with the assistance of arguments and material provided by the parties’ own migration lawyers, thus providing clarification of matters prior to the trial of the matter.
The conclusion reached by the expert was that there could not be certainty as to whether the father would, or would not be able to receive a visa that provides a pathway to permanent residency. The expert observed that the subclass 494 visa, subject to the Regulations being enacted, would provide a pathway to permanent residency. The qualification of being subject to the Regulations being passed was on the basis that the Regulations supporting the class of visa have not yet been enacted.
The father has not yet made application for such a visa.
The expert acknowledged that the father has not as yet obtained the supporting material from his employer to support the pursuit of a subclass 494 visa based upon his training and employment by his current employer.
Absent such material, there were limitations on the expert’s ability to assess the father’s prospects.
This was not the only source of uncertainty as expert acknowledged that the exercise was one of inherent uncertainty due to the degree of discretion that may be exercised by the decision maker as to the granting of a visa, describing the assessment of visa eligibility as “inherently speculative.”
The expert accepted that, provided the supporting material from the employer met the criteria, then the father would have reasonable prospects to obtain the visa.

However, the mother posed a number of matters that undermine the father’s pursuit of the subclass 494 visa. The visa requires anticipated long-term employment with S Company, the father’s employer since 2013. The father, it was alleged, previously represented to the migration authorities in January 2018 that the S Company employment was temporary pending his return to Spain. A further issue was raised that, as the visa requires an intention on the part of the father for the work with S Company to be ongoing, his affidavit evidence about pursuing a project management role was inconsistent with such. This was identified as an impediment to obtaining the visa should the migration authority become aware of it.
Further, as noted above, the father’s employer, as yet, has not provided the nomination material to the migration authority that is a precursor to obtaining the visa. Importantly, it was identified by the expert that a hard barrier to obtaining the visa is the absence of full-time employment for a three-year period at the time of application (noting that the three years is not required to be consecutive). The father accepted that while he was studying his working hours varied between 20 hours per week during term and 40 hours per week during holiday periods, balancing out at about 30 hours per week. These hours were dictated by limitations imposed by his visa in relation to periods in which he was engaged in study. Since finishing his course, he has not been restrained in such a manner. The expert thought that full time employment was likely to be assessed as 35 hours per week, but also asserted that there was likely to be some leeway in interpretation as to what constituted full-time.
The mother noted that it is necessary that the three years be at level and, on the basis that the father’s proposed visa application is based upon him holding a managerial role, it was posited that his employment history was neither full-time for the requisite period, nor was it managerial, but rather as an assistant.
The end assessment of the expert regarding the father’s prospects for obtaining the subclass 494 visa was that it could not categorically be said that he would not obtain the visa, that there was potentially a pathway to obtain such, but that there were significant concerns that needed to be addressed to obtain the visa. There is doubt as to whether the father will make the necessary prerequisite regarding full time employment, doubt as to the meaning of full time employment, and, if he does meet that prerequisite, uncertainty as to the exercise of the discretion to grant the visa.
At present, the existing visa held by the father (based on his previous tertiary study) allows the father and X to remain in Australia until July 2021. Should the father lodge an application for the subclass 494 visa by July 2021, he would be granted a bridging visa until the application and relevant appeals were disposed of. It was identified that the time frame for processing such an application, as at the start of 2020, was usually twelve months, although such applications could be processed in a number of weeks on occasion.
The expectation may then be that, regardless of whether the father ultimately secures the subclass 494 visa on his application for such, a bridging visa will likely permit him to remain in Australia until mid-2022.
The current visa does not give X and the father access to Medicare or free schooling. The father said that he currently pays $11,000 per year for X’s schooling. X and the father are not entitled to Medicare until an application for permanent residency is lodged (after the subclass 494 visa has been held for three years).
The expert assessed that the mother has no prospects of remaining in Australia. The only relevant visa would flow from X obtaining permanent residency (which could not occur until the father has the subclass 494 visa for three years), with such application needing to be pursued by the father and taking at least five years to process.
The expert’s opinions in respect of each party’s visa prospects should be accepted.
It should be noted that the mother’s position was that even if she could obtain an Australian visa, she would choose to live in Spain.
X’s circumstances if living with the mother or if living with the father
If X lives with the mother, that residence will be shared with the mother’s partner, Mr M. The significance of this is set out later in the judgment.
X will also have ready access to the maternal family, and regular contact with the paternal family. Although an issue was raised as to the maternal grandfather presenting a risk, this was not established, and so the benefits of access to the maternal family were not diminished by this issue.
X’s time with the father will mainly be by electronic communication, that the mother has, in general, been reliable in promoting. Face to face time will rely on the father’s travel to Spain, and on the mother’s compliance in sending X to spend time with the father in Australia.
While other matters were raised by the father as supportive of his application, such as the state of the Spanish economy, and the COVID-19 crisis as it currently impacts Spain, the evidence as to these was not sufficient to give them significance in the case.
If X remains living with the father, unlike at present, that will not be with the paternal grandmother also living at the home.
There will, however, be no requirement for X to change school as the father intends to stay in Canberra long term, and he will retain his current friendship group.
The father’s work arrangements at S Company have changed from 4:00 pm-8:00 pm on weekdays (two-three days during the week) and 9:00 am-7:30 pm on weekends to shifts ending at 7:00 pm due to COVID-19. The father said that his work arrangements are flexible around his parenting arrangements, and that his workplace has been very accommodating if he has needed extra time off to be with X.[11]
[11] Father’s affidavit [142]
The father said that he has spoken to his workplace about moving to a steadier work schedule after his mother returns to Spain, and that his employer has agreed to a 9:00 am-5:00 pm weekdays only schedule which will be in place once the COVID-19 pandemic subsides. The father said that he intends to be available as much as possible for X and that he intends to utilise after school care facilities when he is unable to be personally available.
The father’s evidence was that he also has a friendship group in Australia that he would be able to call upon if he faced adverse circumstances.
X’s time with the mother will mainly be by electronic communication, that the father has, in general, been reliable in supporting. Face to face time will rely on the mother travelling to Australia, and rely upon the father sending X to Spain to spend time with the mother, in accordance with the orders he seeks (the efficacy of which is in turn reliant upon the mother returning X to the father in Australia).
The mother’s partner
The mother called evidence from her partner Mr M, with whom she has recently commenced living. The mother describes the relationship between X and Mr M as excellent. Mr M described a strong relationship with X, despite their not as yet having lived together. X spoke positively of Mr M to the family report writer.
Mr M describes having spent a lot of time with X and the mother while X was still in Spain and as having engaged in activities with X, in particular cycling. Mr M also describes interactions with X during the mother’s WhatsApp sessions with X. Mr M described the importance of X’s relationship with the father.
However, somewhat undermining the sincerity of Mr M’s assertions of the importance of the father, Exhibit F3 contained social media posts and comments by Mr M on his social media page abusive of and threatening of the father and his family. Mr M accepted that these were posts made by him.
In one social media post, Mr M described the father as a ‘psychological abuser’, as well as a ‘jerk, the loser and son of a bitch of a father’. He alleged that the father simply wanted to make the mother’s life a misery.
A further post, admitted to be referencing the father and his mother, described them as a ‘bunch of crocks, sons of bitches’ and ‘what scum, what a shame they are not in front of me’. Mr M, in cross-examination alleged that the latter comment meant that if they were in front of Mr M, they would be able to talk about the bad things they have done and the bad people they are. He denied that the post was suggestive that he would do something bad to them.
In a further response to a comment on social media Mr M, stated “Easy…..I still don’t have the gun ready…you know that I abide by the law and justice and that I have people at home and in my family who work with in that.” In cross-examination, Mr M laughingly asserted that his comment was a joke. Whether or not considered amusing by Mr M, the post was threatening serious harm toward the father.
In reference to the father’s removal of X in accordance with the court orders, Mr M posted “…I tell you, today it’s the day I get arrested, what a bunch of sons of bitches…what a shame I was unable to leave work and turn up at the airport. The kid would not have left and they lock me up today, I tell you.” When cross-examined about what he meant by “today’s the day I get arrested”, Mr M alleged that he meant that he would have tried to talk, the police the result of which would be that they would either lock him up or accuse him of something. Again, despite the benign construction placed on the posts by Mr M, they depicted a willingness to intervene in relation to the father in a manner that would cause Mr M’s arrest. Whether or not there was any substance behind Mr M’s comments, his comments depict hostility for, and contempt of the father that sits poorly with his assertions of the importance of the father.
Continuing, Mr M posted “I go to Australia on holidays and I don't come back…seriously, I don’t come back or I do something outrageous.” Again Mr M, displaying some amusement, sought to urge a benign construction on this post, saying that it meant that he could go to Australia, study, and get visas to stay on end. He said that this did not mean that he planned to go to Australia to do something violent. However, it is difficult to place another construction on the post. Again, whether or not there was substance behind the words, the post carried the implication of threat.
Finally, Mr M asserted that X would not pick up on Mr M’s (apparently current) adverse view of the father. This assertion was made despite the proposed circumstance that X would live in a household with Mr M and the mother, a circumstance that was not in place previously when X was in Spain. Given the intensity of Mr M’s expression in relation to the father, the currency of his attitude, and his apparent amusement when being questioned about it, his confidence that X would not be exposed to such a view if living in the same home is misplaced.
The evidence of the family report writer
A family report was prepared in this matter following the mother’s return to Australia to participate in the final hearing. The report writer noted some limitations in the interview process, including the interviews, because of COVID-19 protocols taking place by video and telephone, and observed that while X spoke to the father in English, his communication with his mother was in Spanish. The writer did not consider this to be a major limitation to the report given the visual cues between X and the mother that she observed.
In any event, the key findings made by the report writer did not appear to be the subject of any substantive dispute.
The report writer described that:
preferably, to flourish, X needs stable parenting arrangements, and significant input from both of his parents.
When asked what he would like to say to the judge X told the report writer that he should live with both of his parents in Spain and in Australia. The report writer saw “no overt information to suggest that X’s views had been influenced by an adult.”
Observing the significant disruptions X has had in his time with each of his parents, the report writer noted that such “can be stressful and negatively affect a child’s sense of security.” She further observed that X’s capacity to pick up his relationships with each of his parents under such circumstances is “remarkable” and indicative either that X is resilient, or has received encouragement to do so by each of the parents.
The report writer described that X and the father “mostly seemed relaxed in the company of each other” and that the:
observation raised no concerns about X’s relationship with his father, and suggests that, within the observational context, the father has the ability to sensitively respond to X’s needs, and the capacity to provide a supportive and nurturing environment for him.
The report writer also observed that X and the mother “each delighted in spending time with the other” and that the:
observation raised no concerns about X’s relationship with the mother, and, within the observational context, this observation indicates that the mother is capable of providing a nurturing and supportive environment for X.
The report writer observed X and the mother to be completely at ease in each other’s company, noting that this could be the result of the nature of the relationship, support from the father, X’s resilience or some other cause, unspecified.
During the observation with the father X asked when the time was going to end so that he could play with the mother. There was no reported reticence or discomfort on X’s part to raise playing with his mother with the father, suggestive of X’s experience of the father’s support of the relationship.
The report writer noted that a key advantage of the mother’s proposal is that it would be likely to assist X in “developing a clear sense of belonging.” The father’s proposal, she thought, made it “difficult, but not impossible, for X to maintain a meaningful relationship with his mother.” She observed that as X gets older, he should be able to maintain meaningful relationships with each parent using electronic means of communication.
Against the mother’s proposal, the report writer considered that the change of international relocation, change of school and change of household would be likely to cause X stress, although the paternal grandmother, who has been heavily involved in X’s life in Australia, could help him to settle in Spain. Further, the report writer observed the risk, derived from the mother's non-compliance with orders, that she may not support the relationship between X and the father.
The report writer considered that the decisions made by each parent raise “questions regarding their ability to prioritise X’s needs.” Although it may be observed that the mother has no choice to remain long term in Australia, she clearly identified that such accorded with her choice in any event.
The report writer was unable to make a recommendation, observing that each parent “impressed as possessing the capacity to satisfactorily meet X’s needs.” The report writer, however, observed that remaining in Australia provided stability in the medium term, although against such, thought that if X cannot remain in Australia, then an earlier move to Spain would be preferable.
PRINCIPLES AND DISCUSSION
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of X. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction. It may also be observed that a number of the objects and principles encounter strong practical impediments where the parents live in different countries.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations as set out at s 60CC, to the extent that they arise in a case.
In Jollie & Dysart [2014] FamCAFC 149, the Full Court noted that:
What the Act mandates is a “consideration“ — a mental process of analysis — that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved…
…Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them.
That is, in any given case, the issues may not engage all of the s 60CC considerations and, even if particular considerations are touched upon, their significance to a particular case can vary from the minimal to the central.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright (2007) 37 Fam LR 518, frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.

Similarly, noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3) [2007] FamCA 1364, that the Act places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
A key issue in this case, in determining with which parent X will live, is the fact that the parents live in different countries at present. Resolving the issue of which parent X will live with will have the consequential effect of determining which country X will live in. While such cases are usually referred to as relocation cases, there is no separate category of relocation cases. Factually, however, relocation cases, and in particular international relocation cases pose hard questions with difficult consequences. The outcomes in such cases are often binary, fundamentally impacting the nature of the relationship between a child and one of the child’s parents.
The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements” (Taylor and Barker (2007) FLC 93-345). In dealing with such cases, Boland J in Morgan & Miles (2007) FLC 93-343 observed that:
80. It follows from my exposition of the legislation, that earlier core principles:
– that the child's best interests remain the paramount but not sole consideration;
– that a parent wishing to move does not need to demonstrate “compelling” reasons;
– that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
– the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement, remain valid.
It may also be observed that whether or not a case involves a question of relocation, the structured reasoning process set out in the Act still has application where an order for equally shared parental responsibility is made.
In this case, the potential outcomes are starkly polarised. The mother says that she will not, and cannot live in Australia, and will live in Spain regardless of the orders in relation to X. The father, who can live in Spain, says that he will live in Australia, regardless of the orders in relation to X, for so long as he is permitted to. It is only in the event that the father cannot remain in Australia that there is a prospect for X to live in the same country as both of his parents.
In the event that both parents are in Spain, the parties each say that X’s care should be shared. Similarly, while the parents remain in different countries, the parties agree on the arrangements for the parent with whom X does not live as a consequence of the judgment of the Court.
In determining who X should live with, a number of the considerations are engaged.
The determinative considerations concern firstly the benefits for X of meaningful relationship, in a context where meaningful relationship with one parent or the other will be largely mediated through electronic means. Those benefits, and the ability to maintain a meaningful relationship under those circumstances are in turn reliant upon X’s personal characteristics, the nature of his relationships with each of his parents, and their capacity to provide for him, in particular emotionally.
Those benefits are also impacted by the practical difficulties caused by the parties living on separate continents, and are subject to the support that each parent, in providing for X’s wellbeing, gives to those relationships. The parties’ cases have implications for X deriving benefit from relationships with other important people in his life. In Australia, X will not have face to face access with either the maternal or paternal families. X has had the benefit of close involvement of the paternal grandmother in Australia, and with both families while in Spain. However, when she has the opportunity to, she will return to Spain. X will have access to both families in Spain.
Although issues, in relation to family violence were raised in the proceedings, the evidence did not establish that the conduct of either of the parties constituted family violence or that X is at ongoing risk of exposure to such. For example, appropriately, the key assertion as to financial control made by the mother was asserted not to be an ongoing risk.
Given the binary nature of the outcomes available to X in this case, the effect of changes upon X is a material consideration.
Although X has expressed a view, given his age, and the view being essentially for the equal involvement of both parents, it is not a view that can be accorded weight. It does, however, reinforce the immediately following observation.
There can be no doubt that X has positive, supportive, caring, loving relationships with each of his parents, both of whom are demonstrably able, in a general sense, to provide physically and emotionally for him, as they have each done so for extended periods. As observed by the family report writer, “the father and the mother each impressed as having the capacity to satisfactorily meet X’s needs.”
However, each parent showed some limitation in capacity. In the father’s care X has been exposed to adult discussion exposing him to the dispute about where he will live; the father has, on limited occasions, cut short his communication with the mother; and X has been told not to lie to the mother (although absent further understanding of how or why this came about means that significance should not be attributed to it). Those deficits provided minor examples of his limitations in parental capacity.
In contrast to those minor examples in the father’s care, in the mother’s care, contrary to orders that considered X’s best interests, X was retained outside of Australia for an extended period, thereby separated from the father. This raises two issues regarding the mother, the first being of limitations in her capacity (or willingness) to support the relationship between X and the father, the second being a latent risk of non-compliance.
While not every breach of a parenting order will point to such a latent risk, the determined and ongoing non-compliance by the mother with both the Australian and Spanish orders in retaining X does reveal such a risk, which is little assuaged by the mother’s assurances to the Court to the contrary. While some comfort may be derived from the ultimate lack of success of the mother, marked out by the actions of the Spanish courts in the return of X to Australia, the evidence also indicated that the Spanish courts could not be anticipated to enforce Australian orders, save, inferentially, acting again to have X returned to Australia.
Some comfort may also be derived from the father’s position that if X lives with him, X should still visit the mother in Spain.
Against this, it should also be observed that, once orders were made in the Spanish court, the mother was generally compliant with obligations in relation to providing X to the paternal grandparents. Further, the mother was generally complaint with obligations in respect of electronic communication with the father.
Disregard for court-imposed obligations has not been demonstrated in respect of the father. While the father’s determination to remain in Australia also has the result of separation of X from the mother, that choice was supported by a court determination (in the interim) that remaining in Australia pending determination of the case was in X’s best interests.
The report writer observed that “the decision that each parent has made (as to their country of residence) raises questions regarding their ability to prioritise X’s needs.” Although the mother has no option to remain in Australia, she made it clear that living in Spain was her choice even should she have such an option wherever X might live. In the father’s case, although he could return to Spain, his position is that, as long as he is able to, he will remain living in Australia, even if X is to live in Spain.
However, the question as to prioritisation raised by the report writer is not readily answered critically in respect of either of the parents.
Each parent has strong reasons to decide to live in their country of choice. Each has strong reasons to consider that X’s best interests are met by those choices, meaning that an adverse conclusion should not be reached on how their choice of residence reflects an inability to prioritise X’s best interests. Frequently the interests of parents and children are entwined, and unable to be sealed off from each other. For example, the mother’s legitimate desire to have the close support of her family is closely related to corresponding benefits to the child, both of the child having access to the family, and having the benefits of a mother who is well supported by others. Similarly, the father’s desire to live in Australia, because of the benefits that he sees in living in that country, expose the child to such benefits, and also to the benefit of having a father living in circumstances from which the father also derives benefit.
Here, the conclusion should not be made that either parent is failing to prioritise X’s wellbeing.
Strongly in each parent’s favour, in terms of the assessment of their parenting capacity, is the nature of X’s relationship with each parent. Remarkably, despite the lengthy gaps in time that X has spent with each parent, and despite the very poor relationship between the parents, X has retained the positive, supportive, caring, loving relationships with each of his parents, as described above. Such relationships appear to have been quickly re-established upon X’s reunification with each parent. While some of this may be down to resilience on the part of X, it is suggestive of each parent supporting the relationship with the other.
The most current and examined of the two reunification examples is seen in the ready resumption of the face-to-face relationship between X and the mother after X has been living with the father for about two and a half years, during which time his time with his mother was via electronic means. Even accepting that X and the father were able to pick up on their relationship following X's retention, the qualities of relationship between X and the mother were assessed and identified by the family report writer in a manner that makes their qualities apparent, giving confidence that the current arrangement is effective in supporting that relationship.
While it can be concluded that both parents have fostered the relationship between X and the other when X is in his or her care, the most current, and most robust evidence of such an effective maintenance of the other parent’s relationship is seen in the observations made by the family report writer of the current relationship between X and the mother. Whatever combination of resilience, relationship and support of relationship has resulted in the maintenance of such a relationship between X and the mother, it is a combination that is currently effective in ensuring that X has strong relationships with both parents. That is, there can be significant confidence in the effectiveness of the current arrangements to secure, as best as can be, the benefits for X of meaningful relationships with each of his parents.
Such a finding does not suggest that the mother would fail to support a similar relationship. However, there are two matters that undermine the conclusion that, despite having apparently supported the father’s relationship in the past, a change to live with the mother is not without risk to the relationship with the father.
The first flows from the risks of non-compliance with court orders identified above, although it should be recognised that even while seriously non-compliant with the orders the mother still supported by electronic means (in accordance with orders) the relationship with the father.
The second flows from a circumstance that has emerged since X was returned to Australia. That circumstance is that the mother now co resides with her partner, Mr M, whereas they did not co-reside when X was in Spain. Although X appears to have a positive relationship with Mr M, Mr M’s demonstrated hostility toward the father, exemplified in the threatening posts made by Mr M, is a factor that undermines X’s best interests being supported in living with the mother. Even if it is accepted that the mother would resist Mr M exhibiting hostility, and even if it is accepted that Mr M’s words were merely words without intent to action, it should not be accepted that, as asserted by Mr M, X would be oblivious to what appears to be an ongoing hostility on Mr M’s part to the father if they are living together full time, raising a corresponding risk of the undermining of the important relationship with the father.
Each of the parties’ cases also carry implications for X in terms of change of circumstances.
If X remains in Australia, there is additional stability for him in the medium term. He does not face a change in primary carer, coupled with a change in school, country and home. If the father is able to secure his visa, this stability remains, without the disruption of multiple changes. However, uncertainty remains regarding the securing of the visa. This means that, in the next few years, even if an order is now made for him to remain living with the father, X remains vulnerable to significant change in his care arrangements and life, if a visa is not obtained.
However, if the father does not obtain the visa, the changes for X, if orders are made for him to remain in the father’s care are less stark than an immediate order to live with the mother, as the transition to Spain would be with the father, and the transition in care would not be a reversal of carers, but a transition to shared care, which aligns more closely with X’s expressed view as to what he would like to happen.
If orders are made for X to live with the mother, he faces an abrupt immediate change, along with the prospect of further change if the father is unable to obtain his visa, being a change in the next few years to shared care if the parties’ fall back position in the event that they are both living in Spain is adopted.
Although the report writer considered that if the father was to have to move to Spain, that the change for X be effected sooner rather than later, so as to be less disruptive, it may be observed that such a move is the guarantee of a greater level of disruption, as it would result in a change of primary carer, home and country, followed by a further change back to shared care.
Parental responsibility
The parties largely agreed as to the allocation of parental responsibility that is in X’s best interests in the circumstances of the various outcomes available in this case.
They agree that if they are both living in Spain, that they should equally share X’s care, and equally share parental responsibility. Similarly, they agree that if X is living with the father in Australia that the father should have sole parental responsibility, with each asserting that despite a sole allocation of parental responsibility there should still be consultation between them. Where they disagree is in the event that X lives with the mother in Spain, in which case the mother seeks sole parental responsibility, along with consultation, while the father seeks equally shared parental responsibility.
There is a presumption in favour of equally shared parental responsibility. Despite the apparent difficulties in communication, and at times hostility toward each other manifested in the proceedings, their agreement as to the allocation of parental responsibility should they both live in Spain and share X’s care, supports, in addition to the presumption, such an allocation of parental responsibility. Long term choices in respect of X, such as schooling, will involve decision making that will both be within the direct and intimate knowledge of each party as to then current X's circumstances, and will involve decisions that will involve the close cooperation of the parents and will impact upon each parent. These matters point to equally shared parental responsibility should such circumstances arise.
The different circumstances that arise where the parties live in different countries point to a different result. Whether X lives with the mother in Spain or the father in Australia, long term decisions will be made in the context where one party is more intimately acquainted with X’s circumstances than the other, and where the effects of long term decisions will impact more directly upon, and require the action of one party more than the other. Further pointing away from a shared responsibility are the difficulties in communication. However, X’s interests will not be met by one parent simply disregarding the other, and not involving the other in long term decision making. X will gain the benefit of the wisdom of both of his parents for long term decisions where there is an obligation to genuinely consult, as each party has sought where there is an allocation of sole parental responsibility. Such order should be made if the parents live in separate countries.
Who should X live with?
In the context where X has the benefit of two parents who love him, and are capable of nurturing him, where he would have significant benefits living with either, this is a difficult and finely balanced question. It is readily answered by the parties’ joint proposal in the event that the parties live in the same country. In those circumstances, as proposed by them, parental responsibility and his care should be equally shared, giving X the maximum benefit of each parent being involved in his life.
It is, however, a finely balanced question where, as now, the parents live on opposite sides of the world, and a shared care arrangement is unavailable.
There are a number of matters particularly favouring the mother’s application. X would better enjoy the benefits of meaningful relationship with the mother if he were to live with her. Further, the mother was able to support X’s relationship with the father via electronic means while they were separated. X would also enjoy relationships and support from closer interaction with both the extended maternal and paternal families. X would also be immersed in Spanish culture and language and be able to enjoy his heritage.
However, a number of matters tip the balance to living with the father.
As with living with the mother, when living with the father X will better enjoy the benefits of meaningful relationship with him. He will, in the short term at least, see no marked change in his circumstances, or disruption of his schooling and friendship groups.
Further, the efficacy of X’s current circumstances in providing X with the benefits of meaningful relationship with both parents speaks strongly to retaining them. Although it may be accepted that X’s relationships with both parents were maintained while he lived with the mother, the current arrangements are demonstrably presently effective. The degree of that effectiveness is demonstrated in the observations made by the report writer, of X and the mother.
Change in those arrangements, as proposed by the mother, may also result in both relationships being properly supported, given previous success. However, that change is into different circumstances than before with the mother now living with Mr M. An added risk accompanying that change in circumstances flows from Mr M’s apparent hostility toward the father. The fact that the current arrangements are currently and demonstrably effective in securing the benefits of meaningful relationship with both parents is strongly supportive of the current arrangements being in X’s best interests, and points away from changing them.

Further, whatever orders are made, doubt persists as to the mother’s compliance with obligations in relation to X travelling to Australia. That doubt softens, but remains, in the circumstances where X is habitually resident in Australia and visiting Spain, both because of the father’s willingness to support such an arrangement, and due to the willingness of the Spanish courts to enforce X’s return in the past. It must be observed that if X’s return to Australia requires further intervention by the Spanish courts there is a likelihood that the process will be drawn out, and not in X’s best interests.
Those doubts remain significant were X to live in, and be habitually resident in (as opposed to visit) Spain. Under those circumstances the evidence points to the conclusion that the Spanish courts would be unwilling to enforce Australian orders.
Finally, acceding to the father’s application means, at worst, incremental change for X. If the father is successful in obtaining a visa and then permanent residency, X’s arrangement will remain stable and uninterrupted in the long term. If the father is unsuccessful, then at some point in the next few years, after the avenues to pursue the visa are exhausted, X’s change will be to a new country and shared care, rather than the complete change now proposed by the mother, followed by that further change to shared care as agreed by the parties to be in X’s best interests.
Conclusion
Orders will be made for X to live with the father, whilst the parents remain in different countries. In the event that they live proximately to each other, orders as proposed by them, for shared care and parental responsibility, will be made.
Given the commonality and appropriateness of the parties’ proposals in the event that X lives with the father in Australia, orders will be made in accordance with their proposals.

I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 19 February 2021
MOTHER’S ORDERS SOUGHT (AMENDED MINUTE OF FINAL ORDERS SOUGHT BY THE RESPONDENT MOTHER EXHIBIT M8)
If X lives in Spain with the Mother
1. That in the event Orders are made for the child to live with the Mother in Spain, noting that the Father intends to continue living in Australia if he is permitted to do so subject to his visa requirements, Orders 2 to 8 hereof shall apply.
2. That the Mother have sole parental responsibility in relation to the child.
3. That in relation to Order 2 hereof, prior to making a decision about any major long-term issue, the Mother shall:
3 .1. Consult with the Father with a view to reaching agreement with her about said issue; and
3.2. Take into account the Father's view about said issue.
3.3. Notify the Father in writing as soon as he has made his decision.
4. That the child shall live with the Mother in Spain.
5. That the child spend time with the Father as follows:
5.1.1. In Australia, for no less than four weeks during each Spanish summer school holiday period, commencing in 2021, on dates and times as agreed between the parties, and failing agreement, as follows, from the first Wednesday following the last week of the school term immediately preceding the Spanish summer school holiday period, and for a period of four weeks thereafter.
5.1.2. In the event the Father elects to travel to Spain, the Mother shall facilitate the Father spending time with the child in Spain, and the following shall apply:
5 .1.2.1. The Father shall provide written notice of his intention to travel to Spain at least 28 days prior to his intended date of arrival in Spain, and shall provide the Mother with his dates of arrival in, and departure from, Spain, as well as his address for his intended stay in Spain.
5.1.2.2. The Father shall spend time with the child on an equal shared care arrangement on dates and times as agreed between the parties in writing, and failing agreement, on a week about basis, with changeover occurring each Friday after school (or 3 :00pm on a non-school day), with the Father spending the first Friday after his arrival in Spain, with the child.
6. That the Mother shall facilitate the child spending time with the paternal grandparents as agreed between the Mother and the paternal grandparents, and failing agreement, weekend every four, from after school on Friday until 8:00pm on Sunday, for a period of two weeks school holiday periods outside of time the child spends with the father with changeover occurring as follows:
6.1. At the commencement of the paternal grandparents' time at the P Station in Q City, Spain; and
6.2. At the conclusion of the paternal grandparents' time at L Plaza in N Town, Spain.
7. That the Mother shall facilitate the child communicating with the Father each alternative day via WhatsApp video calls (or an alternative agreed video call communication app), with the Mother to initiate the call, at the following times:
7.1 During daylight savings at 8:00am Australian time; and daylight savings ends until such a time daylight savings resumes, at 7:30pm in addition to 12, the Mother shall facilitate the child communicating with the Father and paternal grandparents at any other reasonable time that the child requests.
If X lives in Australia with the Father
9. That in the event Orders are made for the child to live with the Father in Australia, and the Mother lives in Spain, Orders 10 to 14 hereof shall apply.
10. That the Father have sole parental responsibility for the child, X … 2015 ('X").
11. That in relation to Order 10 hereof, prior to making a decision about any major long-term issue, the Father shall:
11.1. Consult with the Mother with a view to reaching agreement with her about said issue;
11.2. Take into account the Mother's view about the said issue;
11.3. Notify the Mother in writing as soon as he has made his decision.
12. That the child shall live with the Father in Australia.
13. That the child spend time with the Mother as follows:
13 .1. In Spain, for four weeks during each ACT school holiday period occurring at the end of Term 4, commencing in Term 4 of 2021, on dates and times as agreed between the parties, failing agreement, as follows;
13.1.1. In 2021 and each alternative year thereafter, from the first Wednesday following the last week of Term 4, and for a period of four weeks thereafter;
13.1.2. In 2022 and each alternative year thereafter, from 29 December and for a period of four weeks thereafter; and
13.2. IT IS NOTED THAT the Father intends to travel to Spain with X for the purpose of facilitating the time between the child and the Mother.
13.2.1. In the event the Mother elects to travel to Australia, the Father shall facilitate the Mother spending time with the child in Australia, and the following shall apply:
13.2.2. The Mother shall provide written notice of her intention to travel to Australia at least 28 days prior to her intended date of arrival in Australia, and shall provide the Father with her dates of arrival in, and departure from, Australia, as well as her address for her intended stay in Australia;
13.2.3. The Mother shall spend time with the child on an equal shared care arrangement on dates and times as agreed between the parties in writing; and failing agreement, on a week about basis, with changeover occurring each Friday after school ( or 3 :00pm on a non-school day), with the Mother spending the first Friday after her arrival in Australia, with the child.
14. That the Father shall facilitate the child communicating with the Mother each alternative day via WhatsApp video calls ( or alternative agreed video call communication app ), with the Father to initiate the call, at the following times:
14.1. During daylight savings at 8:00am Australian time; and
14.2. When daylight savings ends until such a time daylight savings resumes, at 7:30pm Australian time.
If the parties live in the same country within 70 Kms
15. That in the event the Father and Mother live within 70km of each other in the same country, noting that the Father's position is that this will only be the case if he is unable to maintain a right to live in Australia ( due to his visa requirements) or the Mother relocates to Australia, Orders 16 to 18 shall apply.
16. That the parents shall have equal shared parental responsibility for the child.
17. That the child shall live with each parent on an equal shared care arrangement as agreed between the parties in writing, as follows:
17.1. During school terms, changeover to occur each Friday after school (or 3:00pm on a non-school day);
17.2. During school holidays as follows:
17 .2.1. In even numbered years, the child shall spend the first half of each school holiday period with the Mother and the second half of each school holiday period with the Father;
17 .2.2. In odd numbered years, the child shall spend the first half of each school holiday period with the Father and the second half of each school holiday period with the Mother;
17.3. During special days as follows:
17.3.1. On Father's Day, in the event the child is not already in the Father's care pursuant to the above Orders, the child shall spend time with the Father from 9:00am to 5:00pm.
17.3.2. On Mother's Day, in the even the child is not already the Mother's care pursuant to the above Orders, the child shall spend time with the Mother from 9:00am to 5 :00pm.
17 .3 .3. On the child's birthday:
17 .3 .3 .1. In the event the child is in the Father's care pursuant to the above orders, the Mother shall be permitted to spend time with the child, from after school until 6:00pm on a school day, or from 10:00am until 1:00pm on a non-school day.
17 .3 .3 .2. In the event the child is in the Mother's care pursuant to the above Orders, the Father shall be permitted to spend time with the child from after school until 6:00pm on a school day or from 1 0:00am until 1 :00pm on a non-school day.
17.3.4. During the Christmas period as follows:
17.3.4.1. In even numbered years:
17.3.4.1.1. From 2:00pm on Christmas Eve until 2:00pm on Christmas day with the Father; and
17.3.4.1.2. From 2:00pm on Christmas Day until 2:00pm on Boxing Day with the Mother;
17.3.4.2. In odd numbered years:
17.3.4.2.1. From 2:00pm on Christmas Eve until 2:00pm on Christmas Day with the Mother; and
17.3.4.2.2. From 2:00pm on Christmas Day until 2:00pm on Boxing Day with the Father.
18. That each parent shall facilitate the child communicating with the other parent by phone and/or video call, at time as agreed between the parties in writing, and failing agreement each Monday and Wednesday between 5:00pm and 6:00pm.
Flights
19. That for the purpose of these Orders, in the event the child is required to travel to facilitate Orders 5 and 13 above, the following shall apply:
19.1. The parent with whom the child does not live ('-the non-resident parent") shall be responsible for booking the child's return tickets.
19.2. The non-resident parent shall be responsible for booking the child's flight tickets on the relevant dates to ensure that the child's time with the non-resident parent can commence on the date as set out in these Orders:
19.3. In the event there are no flights available permitting changeover to occur at the stipulated times set out in that particular Order, unless otherwise agreed between that parties in writing, the non-resident parent shall book the flight that arrives at the changeover location at the closest time available to the changeover time;
20. Unless otherwise agreed between the parties in writing, the parents shall book economy class flight tickets and IT IS NOTED THAT they shall use their best endeavours to book cost effective tickets;
20.1. The parties shall each pay 50% of the costs of the child's flight tickets, and for that purpose the resident shall pay the costs of the ticket upfront, and the non-resident parent shall reimburse 50% share to the resident parent within 14 days of receipt of the tax invoice from the resident parent.
20.2. The non-resident parent shall notify that resident parent that he/she acquired the right tickets and provide copy of same no less than 60 days before the date of the scheduled flight to the country where the non-resident parents lives.
Restraints
21. That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the child or in the presence of the child, and shall do all things reasonably necessary to remove the child from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the child.
22. That each parent be restrained by injunction from passing from information or messages through the child to the other parent.
23. That each parent be restrained by injunction from discussing these proceedings and /or their family law dispute with the child.
Information Sharing
24. Each parent shall inform and keep the other parent informed regarding aspects of the child's care, welfare and education including the school the child attends and the child family doctor.
25. That both parents shall authorise by these Orders any day care, preschool and/or school attended by the child, to provide to either parent, upon request, any reports, information or photos relating to child, at the requesting parent's cost.
26. That the parents shall authorise by these Orders any of the child's General Practitioner or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the child at that parent's cost (if any).

FATHER'S ORDERS SOUGHT (AMENDED MINUTE OF FINAL ORDERS SOUGHT BY THE APPLICANT FATHER EXHIBIT F5)
If X lives in Australia with the Father
1. That in the event Orders are made for the child to live with the Father in Australia. and the Mother lives in Spain. Orders 2 to 6 hereof shall apply.
2. That the Father have sole parental responsibility for the child. X born in 2015 (X).
3. That in relation to Order 2 hereo[ prior to making a decision about any major long-term issue. the father shall:
3.1. Consult with the Mother 1vvith a view to reaching agreement with her about said issue:
3.2 Take into account the mother's views about said issue.: and
3.3. Notify the Mother in writin12: as soon as he has made his decision .
4. That the child shall live with the Father in Australia.
5. That the child spends time with the Mother as follows:
5.1. In Spain, for four weeks during each ACT school holiday period occurring at the end of Term 4, commencing in Term 4 of 2021, on dates and times as agreed between the parties. and failing agreement, as follows:
5.1.1. In 2021 and each alternate year thereafter, from the first Wednesday following the last week of Term 4, and for a period of four weeks thereafter:
5.1.2. In 2022 and each alternate year thereafter, from 29 December and for a
period of four weeks thereafter; and
5.1.3. IT IS NOTED THAT the Father intends to travel to Spain with X for the purpose of facilitating the time between the child and the Mother.
In the event the Mother elects to travel to Australia. the Father shall facilitate the
Mother spending time with the child in Australia, and the following shall apply:
5.2.1. The Mother shall provide written notice of her intention to travel to Australia at least 30 days prior to her intended date of arrival in Australia, and shall provide the Father with her dates of arrival in. and departure from Australia, as well as her address for her intended stay in Australia:
5.2.2. The Mother shall spend time with the child on an equal shared care arrangement on dates and times as agreed between the parties in writing, and failing agreement, on a week about basis, with changeover occurring each Friday after school (or 3:00pm on a non-school day), with the Mother spending the first Friday after her arrival in Australia, with the child.
6. That the Father shall facilitate the child communicating the Mother each alternate day via WhatsApp video calls (or an alternative agreed video call communication app), with the Father to initiate the call. at the following times:
6.1. During daylight savings at 8:00am Australian time; and
6.2. When daylight savings ends until such time daylight savings resumes, at 7:30pm Australian time.
If X lives in Spain with the Mother
7. That in the event Orders are made for the child to live with the Mother in Spain, noting that the Father intends to continue living in Australia if he is permitted to do so subject to his visa requirements, Orders 8 to 12 hereof shall apply.
8. That the parties shall have equal shared parental responsibility in relation to the child.
9. That the child shall live with the Mother in Spain.
l 0. That the child spend time with the Father as follows:
10.1. In Australia, for four weeks during each Spanish summer school holiday period, commencing in 2021, on dates and times as agreed between the parties, and failing agreement as follows, from the first Wednesday following the last week of the school term immediately preceding the Spanish summer school holiday period, and for a period of four weeks thereafter.
l0.2. That for the purpose of the preceding Order. the Mother shall be responsible for the accompaniment of the child on the flights, however in the event the Father is able to organise one or both parts of the trip, whether by way of him accompanying the child or his family member doing so he shall notify the Mother as soon as practicable prior to the time the Mother books flights for the child pursuant to Order 18 below.
10.3. In the event the Father elects to travel to Spain. the Mother shall facilitate the Father spending time with the child in Spain. and the following shall apply:
l 0.3.1. The Father shall provide written notice of his intention to travel to Spain at least 30 days prior to his intended date of arrival in Spain, and shall provide the Mother with his dates of arrival in. and departure from, Spain, as well as his address for his intended stay in Spain:
10.3.2. The Father shall spend time with the child on an equal shared care arrangement on dates and times as agreed between the parties in writing, and failing agreement on a week about basis. with changeover occurring each Friday after school (or 3 :00pm on a non-school day), with the Father spending the first Friday after his arrival in Spain with the child.
11. That the Mother shall facilitate the child spending time with the paternal grandparents as agreed between the Mother and the paternal grandparents. and failing agreement each alternate weekend from 1 0:00am on Saturday until 1 0:00am on Sunday with changeover occurring as follows:
11.1. At the commencement of the paternal grandparents· time at the P Station in Q City, Spain: and
11.2. At the conclusion of the paternal grandparents’ time at L Plaza in N Town, Spain.
12. That the Mother shall facilitate the child communicating with the Father each alternate day via WhatsApp video calls (or an alternative agreed video call communication app), with the Mother to initiate the call at the following times:
12.1. During daylight savings at 8:00am Australian time: and
12.2. When daylight savings ends until such time daylight savings resumes, at 7:30pm Australian time.
13. That in addition to Orders 12, the Mother shall facilitate the child communicating with the Father and paternal grandparents at anv other reasonable time that the child requests.
If the parties live in the same country
14. That in the event the Father and the Mother live within 70km of each other in the same country noting that the Father's position is that this will only be the case if he is unable to maintain a right to live in Australia (due to his visa requirements) or the Mother relocates to Australia, Orders 15 to 17 shall apply.
15. That the parents shall have equal shared parental responsibility for the child.
16. That the child shall live with each parent on an equal shared care arrangement as agreed between the parties in writing, as follows:
16.l. During school terms. changeover to occur each Friday after school (or 3 :00pm on a non-school day):

16.2. During school holidays as follows:
16.2.1. In even numbered years. the child shall spend the first half of each school holiday period with the Mother and the second half of each school holiday period with the Father:
16.2.2. In odd numbered years. the child shall spend the first half of each school holiday period with the Father and the second half of each school holiday period with the Mother:
16.3. During special days as follows:
16.3.1. On Father's Day. in the event the child is not already in the Father's care pursuant to the above Orders. the child shall spend time with the Father from 9:00am to 5 :00pm:
16.3.2. On Mother's Day, in the event the child is not already in the Father's care pursuant to the above Orders. the child shall spend time with the Father from 9:00am to 5 :00pm:
16.3 .3. On the child’s birthday:
16.3.3.1. In the event the child is in the Father's care pursuant to the above Orders, the Mother shall be permitted to spend time with the child, from after school until 6:00pm on a school day, or from l 0:00am until 1:00pm on a non-school day:
16.3.3.2. In the event the child is in the Mother's care pursuant to the above Orders. the Father shall be permitted to spend time with the child
from after school until 6:00pm on a school day or from l 0:00am
until 1 :00pm on a non-school day.
16.3 .4. During the Christmas period as follows:
16.3.4.1. In even numbered years:
16.3.4.1.1. From 2:00pm on Christmas Eve until 2:00pm on Christmas Day with the Father: and
16.3.4.1.2. From 2:00pm on Christmas Day until 2:00pm on Boxing Day with the Mother:
16.3 .4.2. In odd numbered years:
16.3A.2.1. From 2:00pm on Christmas Eve until 2:00pm on Christmas Day with the Mother: and
16.3.4.2.2. From 2:00pm on Christmas Day until 2:00pm on Boxing Day with the Father.
17. That each parent shall facilitate the child communicating with the other parent by phone and/or video call, at times as agreed between the parties in writing. and failing agreement, each Monday and Wednesday between 5 :00pm and 6:00pm.
Flights
18. That for the purpose of these Orders. in the event the child is required to travel to facilitate Orders 5 and 10 above, the following shall apply:
18.1. The parent with whom the child does not live (“the non-resident parent'") shall be responsible for booking the child’s return flight tickets:
18.2. The non-resident parent shall be responsible for booking the child's flight tickets on the relevant dates to ensure that the child’s time with the non-resident parent can commence on the day as set out in these Orders:
18.3. In the event there are no flights available permitting changeover to occur at the stipulated times set out in that particular Order. unless otherwise agreed between the parties in writing, the non-resident parent shall book the flight that arrives at the changeover location at the closest time available to the changeover time:
18.4. Unless otherwise agreed between the parties in writing, the parents shall book economy class flight tickets and IT IS NOTED THAT they shall use their best endeavours to book cost effective tickets:
18.5 The parties shall each pay .50% of the costs of the child's flight tickets, and for
that purpose the non-resident parent shall pay the costs of the ticket upfront, and the non-resident parent shall reimburse their 50% share to the resident parent within 14 days of receipt of the tax invoice from the resident parent:
18.6. The non-resident parent shall notify the resident parent that he/she acquired the
flight tickets and provide copy of same no less than 30 days before the date of the
scheduled flight to the country ,.where the non-resident parent lives.
Restraints
19. That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the child or in the presence of the child. and shall do all things reasonably necessary to remove the child from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the child.
20. That each parent be restrained by injunction from passing information or messages through the child to the other parent.
21. That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the child.
Information sharing
22. Each parent shall inform and keep the other parent informed regarding aspects of the child's care. Welfare and education including the school the child attends and the child's familv doctor.
23. That both parents shall authorise by these Orders any day care. preschool and/or school attended by the child. to provide to either parent. upon request. any reports. information or photos relating to child. at the requesting parent’s cost.
24. That the parents shall authorise by these Orders any of the child’s General Practitioner or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to the child at that parent’s cost ( if any).

File number(s):	CAC 2154 of 2017
Judgment of:	GILL J
Date of judgment:	19 February 2021
Catchwords:	FAMILY LAW – CHILDREN – with whom child lives – international relocation – best interests of the child – where the mother lives in a European country – where the child lives with father in Australia – where each parent accepts parenting capacity of other parent – where each parent intends to remain in their country of residence – capacity and willingness of each parent to support the relationship with the other parent – mother’s non-compliance with Court orders in the European country and Australia – mother’s partner’s attitude to the father – implications of the uncertainty regarding the father’s pursuit of an Australian visa – issues regarding enforcement of Australian orders in the European country.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(3)(b), 60CC(3)(f), 60CC(3)(j), 65DAA
Cases cited:	Jollie & Dysart [2014] FamCAFC 149 Marsden & Winch (No. 3) [2007] FamCA 1364 Mazorski v Albright (2007) 37 Fam LR 518 Morgan & Miles (2007) FLC 93-343 Taylor and Barker (2007) FLC 93-345
Number of paragraphs:	198
Date of hearing:	30 November 2020 – 4 December 2020
Place:	Canberra
Counsel for the Applicant:	Mr Duane
Solicitor for the Applicant:	Farrar Gesini Dunn
Counsel for the Respondent:	Ms Davis
Solicitor for the Respondent:	Elringtons
Counsel for the Independent Children's Lawyer:	Mr Stagg

CAC 2154 of 2017
BETWEEN:	MR LEGGARA Applicant
AND:	MS ONCINS Respondent
LEGAL AID Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	19 FEBRUARY 2021