Leggara & Oncins

In the matter of *Leggara & Oncins*, heard by Gill J, the applicant father sought orders concerning the residence of the child, X, born in 2015. The respondent mother resided in a European country, while the child lived with the father in Australia. Both parents accepted the other's parenting capacity and intended to remain in their respective countries of residence. The dispute involved complex issues surrounding international relocation, the best interests of the child, the parents' capacity and willingness to support the child's relationship with the other parent, the mother's past non-compliance with court orders in both Australia and the European country, the attitude of the mother's partner towards the father, uncertainty regarding the father's Australian visa prospects, and the enforceability of Australian orders in the European country.

The court was required to determine with whom the child, X, should live, considering the paramount consideration of X's best interests. This involved assessing the implications of the parents' differing residences, their respective capacities to facilitate a relationship between X and the other parent, and the impact of the mother's prior non-compliance with court orders. Furthermore, the court had to consider the uncertainty surrounding the father's ability to secure a visa for permanent residency in Australia, and how this uncertainty might affect X's long-term stability and living arrangements.

Gill J reasoned that despite the parties' poor relationship and limited capacity for cooperation, both parents demonstrated a positive relationship with and general capacity to care for X. The court noted that the mother's retention of X in Spain contrary to Australian court orders was a significant factor, revealing her attitude towards X's relationship with the father. The court also considered expert evidence regarding the father's visa prospects, which indicated uncertainty but reasonable prospects of success if certain criteria were met. Ultimately, the court concluded that acceding to the father's application represented incremental change for X, offering greater stability in the long term compared to the complete change proposed by the mother.

The court ordered that X shall live with the father and that the father shall have sole parental responsibility, with specific provisions for consultation with the mother regarding major long-term issues. X was also ordered to spend time with the mother in Spain for four weeks during each Term 4 ACT school holiday period, with specific arrangements for 2021 and alternate years thereafter. The court indicated that if the parents were to live proximately to each other in the future, orders for shared care and parental responsibility could be made.