LOWE & DURNOV

[2015] FamCA 643

FAMILY COURT OF AUSTRALIA

LOWE & DURNOV [2015] FamCA 643

FAMILY LAW – CHILDREN – RELOCATION – Orders made allowing the mother to relocate the child to the Germany – Where the Court is satisfied that the meaningful relationship between the father and the child can be maintained despite the child’s relocation – Where the Court is satisfied that the relocation of the child to Germany is in the best interests of the child – Orders made for the child to spend time with the father in Australia during the German summer school holidays and other holiday periods each year - Orders for regular electronic communication – Where the parties are to have equal shared parental responsibility for major long term issues relating to the child.

Family Law Act 1975 (Cth)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children

Cape & Cape (2013) FLC 93-549
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Lowe

RESPONDENT: Mr Durnov

INDEPENDENT CHILDREN’S LAWYER: Jennifer Boulton Solicitor

FILE NUMBER: BRC 534 of 2007

DATE DELIVERED: 4 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Parker Family Law

THE RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr George

THE INDEPENDENT CHILDREN’S LAWYER: Ms Boulton, Jennifer Boulton Solicitor

Orders

IT IS ORDERD BY WAY OF FINAL ORDER THAT

1. All previous parenting orders are discharged.

2. The child A, born … 2004, live with the mother and the mother is at liberty to relocate the child’s residence to Germany.

3. The parents have equal shared parental responsibility for the major long term issues for the child with such issues to include but not be limited to:

   (a)       the child’s education;

   (b)        the child’s religious and cultural upbringing; and

   (c)       the child’s health.

4. Each parent has responsibility for daily decisions about the day to day care, welfare and development of the child while the child is in his or her care.

5. The father spend time and communicate with the child at all such times as may be agreed between the parties in writing and failing agreement as follows:

   (a)for all but two weeks of the German summer school holiday period each year; and

   (b)for two weeks in the German Easter school holiday period in each year; and

   (c)for two weeks in the German Autumn school holiday period in each year; and

   (d)on another occasion each year during German school holiday periods on the proviso that the father give the mother no less than 60 days’ notice in writing of his intention that the child spend time with him during this period.

6. The time the child is to spend with the father pursuant to Clause (5) of this Order shall occur in Australia unless otherwise agreed between the parents in writing and in order to facilitate this:

   (a)the mother shall be responsible for the purchase and cost of the child’s return airfares to and from Australia for the time under Clause (5) (a), (b) and (c); and

   (b)the father shall be responsible for the purchase and cost of the child’s return airfares to and from Australia for the time under Clause (5)(d).

7. In the event the father has travelled to Europe, the child shall spend time with him in Europe on all such other occasion as may be agreed between the parties in writing and this time shall be in addition to the time provided for by Clause (5) of this Order.

8. Each parent shall facilitate the child communicating with the other by telephone or Skype communication or by any other appropriate form of social media or networking sites at all reasonable times.

9. Each parent shall:

   (a)keep the other informed at all times of their residential address, telephone numbers, mobile numbers and email addresses and notify the other of any changes to the same within three (3) days of such change; and

   (b)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and

   (c)inform the other as soon as is reasonable practicable of any serious medical condition, significant health issue or illness suffered by the child; and

   (d)keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.

10. By this Order, the parents authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.

11. By this Order, the parents authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

12. The mother provide the father, within 28 days of her receiving the same, a copy of any school report, official certificate or award obtained by the child and, on no less than one occasion each year, provide him with a copy of any official school photograph in which the child appears.

13. Each parent is at liberty to attend the child’s child care, school, extra-curricular activities and to participate in parent-teacher interviews, school functions and social events at these venues but neither parent shall attend at the same during the child’s normal daily schedule unless invited by the child care, school or extra-curricular activity provider.

14. Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and use their best endeavours to ensure that no other person denigrates these people in the presence or hearing of the child.

15. Neither parent consume alcohol to excess when the child is in that party’s care, so that their capacity to care for the child is not impaired.

16. Each parent agrees to act appropriately at all times around the child and to not expose her to any adult conflict or involve her in any adult disputes.

17. The Independent Children’s Lawyer is discharged.

18. All outstanding applications are otherwise dismissed.

19. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC534 of 2007

Ms Lowe

Applicant

And

Mr Durnov

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Until relatively recently, A (“the child”), born in 2004, has had the very good fortune to have parents who, though separated since late 2006, have been able to co-parent her co-operatively. Each has been able to accommodate the fluctuations of two lives now lived separately. Each has been able – no doubt with effort, commitment to the child and a focus on putting her interests ahead of their own - to arrive at parenting arrangements which have seen her develop the close bonds she has with each of them and members of their families.

2. I wholeheartedly endorse the father’s repeated comment that he is very proud of the manner in which he and the child’s mother have been able to parent her after their separation. Both parents, rightly, take great pride in the child, her achievements and the person she is becoming. She has clearly known only love and support during her life. I am certain she will continue to know and experience only these from both her parents and other members of her family into the future. I also have no doubts that, as they have done in the past, each parent will, in the future, do their best to provide for the child and to ensure her reasonable needs are met.

3. Until about March 2014, the child lived predominantly with her mother. She did so with the agreement of her father. She initially spent time with him for two nights each week[1] and then, from February 2008, for five nights each fortnight and for half of all school holiday periods.[2] I accept his evidence to the effect that, despite the specific terms of the orders, he and the child’s mother were able to be flexible and accommodate each other’s needs and unavoidable commitments to ensure that the child was properly cared for at all times.

   [1]          Order made 30 April 2007.

   [2]          Order made 7 February 2008.

4. Whilst in her mother’s household, the child had the opportunity to live with her step-father, Mr L, from November 2009 and with her half-brother T, who was born in 2011.  Whilst in her father’s household, she has had the opportunity to spend significant time with her paternal grandmother, who has assisted in her care during school holidays and, during school weeks, from after school until her father finished work.

5. These arrangements changed significantly in March 2014 when the child’s mother and T moved to live in Germany to reunite with Mr L (the mother’s husband and T’s father). Since then, the child has lived with her father and spent time with her mother in Germany[3] during the June/July 2014 school holiday period and during the Christmas 2014 school holidays. Save for this holiday time, the child’s day to day needs have been met by her father and paternal grandmother: it was not really suggested that they have done anything but meet these needs appropriately.

   [3]          And other European destinations.

6. To the extent that it is necessary to do so, I record that I am not persuaded that, in restricting the child’s ability to access the internet and/or Skype for a period after school, the father and/or paternal grandmother were deliberately preventing her from contacting her mother. I accept the father’s evidence to the effect that they were attempting to ensure the child focused on doing her homework and that she learned there were consequences – such as the removal of internet privileges – for failing to do this. Even if this form of behaviour management resulted in the child being unable to Skype with her mother on occasions, it must not be forgotten that they were speaking over the telephone on three occasions each day. I also join with Mr J in concluding that the child is happy a lot of the time with her father and is in a caring and supportive environment when living in his home.

7. Whilst both the mother and the stepfather had previously lived in Australia for a significant period of time, both were born in Europe and lived there for significant periods during their youth. Both the mother and stepfather have obtained work in Germany. There are no plans for them to return to Australia to live.

8. The father, too, was born outside Australia – he, too, has lived in this country for many years. In contrast to the mother’s position, he  has no plans to live outside Australia in the foreseeable future.

9. Each of her parents wants the child to live with them. Her mother seeks orders which would permit the child to move to live with her, Mr L and T in Germany. Her father seeks that the child continue to live with him in Australia. Each parent proposes that the child spend time during school holiday periods with the person with whom she does not live and that she communicate regularly via Skype and other electronic or social media means.

10. The child has clearly benefitted from the love, care, nurturing and devotion she has received from both her parents and members of their families. She is clearly dearly loved by all and, it is easy to conclude, dearly loves all.

11. It is, I think, an unfortunate consequence of these proceedings that each of her parents has raised issues critical of the other and their care of the child in support of their respective contentions that her interests will be better served by living as each proposes. None of the issues raised seems to me really to have substance.

12. Both parents have, I think, exposed the child to their respective views about the parenting regime which each thinks will be in her best interests into the future. I am persuaded that each has done so with the intention of attempting to ascertain, from the child herself, what she wants. Whilst I am not persuaded that either has done so with the intention of harming the child or placing her in a difficult position, her reality is that she has been placed in such a position.

13. It is, I think, overwhelmingly clear from the reports prepared by Mr J and Dr Y respectively that the child desperately does not want to be placed in the position of having to choose which of her parents she will live with primarily into the future. I accept entirely the evidence to the effect that the burden of such a decision should not be borne by the child herself.

14. Whilst it may well be that the child has picked up on the view held by her father and her paternal grandmother that, in moving to Germany, her mother has prioritised her own needs ahead of the child’s and that this has caused her to question her mother’s commitment to her, I note, with relief, that the child appears to realise how much her mother loves and misses her. It would, I think, be a tragedy for the child if, after this process, she was left thinking that either of her parents was not fully committed and devoted to her. Not only would this be tragic, it would be wrong.

15. There can be no doubt that the child has good and well established relationships with each of her parents and her paternal grandmother. There can be no doubt that she similarly has a good and well established relationship with her stepfather, given that he had been part of her daily life from November 2009 (when he moved to live with her mother) until the end of 2013 (when he moved overseas to embrace work opportunities). There is no dispute that the child’s father and stepfather have enjoyed a cordial relationship.

16. The relationship between the father and the mother and her husband has previously been such that the father was at pains to emphasise that he appreciated Mr L’s comments about him and wanted to ensure that the cordial relationship between them continued into the future. He made this abundantly clear, I think, when he freely acknowledged that the household constituted by the mother and Mr L and T was a great family and that the child would be well looked after if she returned to live within it (albeit in Germany).

17. Both parents love the child deeply and both acknowledge that she loves each of them deeply. There can be no conclusion other than that each parent has sought to be – and has been - regularly and meaningfully involved in the child’s life to date and that, irrespective of the decision to be made about her place of residence into the future, each will continue to be meaningfully involved to the extent to which, and in manner in which, geographic distance will practically permit.

18. In opposing the child moving to live in Germany with her mother, her father emphasises that the child was born and has grown up in Australia, is settled here and has established family, school and friendship networks here. He also expresses concern that she does not speak German and may, for that reason, struggle to assimilate into the German education system or to participate in the international school at which her mother proposes she attend. He notes, also, that her free-spirited nature is such that she may struggle to fit within what he understands to be, and perceives as, a more strictly structured educational system than that to which the child has been exposed in Australia. He emphasises that she will lose the opportunity for regular and frequent interaction with her paternal grandmother and members of her extended paternal family, including the children of his cousin and sister, with whom the child has traditionally spent regular time. He expresses significant concern that a move to Germany may also detrimentally affect the child’s relationship with him into the future, as she will no longer be able to experience his consistent and practical involvement in her day to day life. He is concerned she will lose the opportunity to benefit from daily exposure to his artistic talents and abilities and that her desire to be a performer will, in this way, be adversely affected.

19. In proposing that the child move to live with her in Germany, her mother emphasises that this would reunite her with her primary care provider and with T and Mr L. She emphasises, also, that the child is already bilingual and has a flair for languages such that she will likely learn to speak German quickly; she says the child is adaptable and social and easily capable of making new friends. She also advances the proposition that, whatever upset a complete dislocation from all that has previously been familiar may cause for the child, she will easily and quickly manage this in a way that does not result in her suffering any long term harm. Her case further advances that the child will be able to continue to have a meaningful relationship with her father and grandmother by visiting them in Australia during holidays and by communicating regularly with them from Germany.

20. These different proposals are clearly a reflection of each parent’s genuinely held but significantly differing views about what will be best for the child into the future. Whatever order is made, the child will continue to be enveloped in the love and care of two groups of people who love her dearly, care for her and want only the best for her as she grows toward adulthood. No other conclusions could reasonably be drawn.

21. The parties and the child spoke with Mr J[4] on 10 September 2014. The child was then about 10 years and eight months of age. Apart from time in the two days preceding the interview, she had last spent time with her mother during the 2014 June/July school holidays, when she visited her in Germany and spent time there and in other European locations.

    [4]           A psychologist engaged to prepare a Family Report to assist the Court.

22. The child has since spoken with Dr Y on a number of occasions. Given that Dr Y was engaged as a therapist to support the child, I do not intend to rely upon her expressed opinion about those future parenting arrangements which are in the child’s best interests. Mr J has fulfilled the role of single expert witness in this matter.

23. Mr J records, and I have already accepted, that both parents acknowledged they previously enjoyed an amicable co-parenting relationship with relatively few problems. As I have already expressed, this is, without doubt, a credit to both of them. They also acknowledged to him – and again, I accept - that the child has a positive and meaningful relationship with each of them. This also is, without doubt, a credit to each of them and a reflection of their respective support for her having such relationships.

24. I accept Mr J’s opinion that both of the child’s parents:

    a)are very loving and very caring toward her; and

    b)have done an excellent job in their co-parenting of her; and

    c)managed to shield the child from any conflicted views about each other during the day of his interviews.

25. I also accept Mr J’s assessment of the child as warm, genuine, communicative, empathetic and socially well adapted. She clearly is a credit to, and reflective of, the warm and effective parenting she has received in both her parents’ households.

1. I accept Mr J’s assessment that the child loves each of her parents equally and that she has a very positive relationship with her paternal grandmother, who has had significant involvement in her life to date. I have no hesitation in also accepting that the child’s paternal grandmother loves her dearly. I further accept as highly likely that the opportunity to live with her father and spend increased time with her paternal grandmother since March 2014 has resulted in a strengthened relationship with both of these very important people.

2. I also accept Mr J’s assessment that, whilst the child has a well-developed attachment system (in the sense of having a sense of security in the word and a knowledge of, and trust in, all members of her family as people to whom she could turn if she needed assistance or support), her greatest sense of comfort lies with her mother. I also conclude that it is highly likely she continues to pine for her mother and to grieve the loss of their previous daily interactions. I accept the father’s evidence that the child has said to him she misses her mum. I accept as highly likely that she has a strong desire to reunite with her mother.

3. I accept that the child has a secure attachment with her father. I also accept that the relationship between them is unlikely to be fractured if she moves to live with her mother in Germany.

4. I also accept that, whilst she previously had a secure attachment with her mother (as a consequence, no doubt, of the fact that, from her birth until March 2014, her mother was the parent who provided the majority of her care), such attachment may have been disrupted when her mother moved to live in Germany in March 2014 without her. I further accept Mr J’s evidence to the effect that a failure to rectify the disruption to the child’s attachment to her mother, which is likely to have attended her mother moving to Germany without her, may result in the child developing a belief system in which the idea that her mother abandoned her to some degree (or, perhaps, treated her needs as subservient to her own and/or those of Mr L and T) takes hold. This cannot, in my view, be in any way beneficial for the child and could have deleterious consequences for her long term development.

5. I accept Mr J’s evidence to the effect that, if the child moves to live with her mother again, there is every likelihood that she will regain any lost trust and overcome any sense of abandonment she may have felt when her mother left Australia without her.

6. I accept entirely that it is highly likely the child has told each of her parents at various times that she wants to live with that person; I have no difficulty at all in accepting that, on occasion, she has told her mother she wants to live with her in Germany and that, on occasions, she has told her father that she wants to continue to live with him in Australia and, for example, to attend a certain high school.

7. These comments, though, should be seen for what they are: expressions of an 11 year old child who loves both parents dearly and who does not want to hurt or disappoint either of them. They cannot, in my view, be seen to be in any way determinative of the ultimate decision.

8. Even accepting Mr J’s assessment of the child as mature for her age, I also have no difficulty in accepting that it is highly likely that, on occasions, she has been unwilling to be totally open in speaking with her father about wanting to be with her mother and that this reticence has occurred because she is concerned about hurting him. An example of this can be found, I think, in Mr J’s recounting that, during his interview with her, the child expressed a strong desire to go Germany to be with her mother but did not want this reported.

9. Whilst I am not in any way persuaded that the mother actively influenced the child to make these comments to Mr J, I cannot rule out the possibility that spending time with her mother immediately before the interview highlighted for the child the absence of her mother from her day to day life – so much is hardly extraordinary given the role her mother had played in her life until March 2014.

10. I accept Mr J’s evidence about the child’s attachments to each of her parents, her paternal grandmother, T and Mr L. I also accept his evidence that to the effect that her attachment to her mother and her strong attachment to T are primary determinates of the decision to be made in this case. I accept that these attachments are extremely important to the child at this stage in her life.

11. I also accept that the child’s sibling relationship with T is very important and that their relationship will be stronger and, I infer, more beneficial for the child[5] if permitted or able to develop further while they are both children. Clearly, the likelihood of this is maximised if the children live in the same household. Additionally, whilst the child may well be able to maintain a meaningful relationship with her mother (and her stepfather) via non face to face communication, this prospect seems significantly less likely with T, given his age. In reality, for the children’s relationship to develop and strengthen, they need to have sufficient opportunity to spend physical time together as each grows older.

    [5]           and T.

12. I accept Mr J’s evidence to the effect that the child is highly likely to experience a sense of grief and loss in relation to her father (and, I infer, her paternal family in general) and her friends if she moves to live with her mother in Germany. I also accept, however, that he does not think she will suffer any long term psychological harm as a result. I accept his assessment of her as a child who will adjust to the significant changes associated with such a move, especially if supported by her mother and father.

13. The child’s mother (and stepfather) will clearly support the child in dealing with the effects of moving to live in Germany. Given his deep love for her, I have no doubt that, if a decision is made that the child live with her mother in Germany, the father will also support her in undertaking this move.

14. I note also, as Mr J did, that the child is at an age where her current relationships with school friends may change significantly when she enters high school – which, if she remains living in Australia, will be at the start of 2016. As he noted, children who attend the same primary school may easily end up attending different high schools and their friendships may well change or flounder as a result.

15. I accept that if the child lives with her mother in Germany she will have the opportunity to maintain her relationship with her maternal grandfather who lives in the same building in which she will live. I accept that he is likely to be involved in her care on a day to day basis as he is already with T. Living in Europe would provide the child with at least a greater possibility of increased interaction with members of her maternal family and members of Mr L’s extended family, even if such opportunities are realistically limited to holiday times. She would live in a household in which her mother and stepfather will clearly be able to meet her financial needs given the relatively significant surplus of monthly income over expenses that their employment in Germany has provided to them. I have no doubt that, as she has so far in her life, the child’s mother would act to protect her from exposure to any unforeseen events which might pose a risk to her.

Principles[6]

[6]          See MRR v GR (2010) 240 CLR 461 and Cox & Pedrana (2013) FLC 93-537.

1. In these proceedings, being proceedings for a parenting order[7]  in relation to the child, I may, subject to s 61DA[8]  and s 65DAB[9] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[10] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[11] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[12]  

   [7] s 64B of the Family Law Act 1975 (Cth).

   [8]           presumption of equal shared parental responsibility.

   [9]           Parenting plans.

   [10]         s 65D of the Act.

   [11]         s 60B of the Act.

   [12]         s 60CA and s 65AA of the Act.

2. The submissions prepared on behalf of the mother urge the making of an order for equal shared parental responsibility. No submission to the contrary was made on behalf of the Independent Children’s Lawyer. As is required by s 65DAA of the Act, I have considered those statutory conditions mandated there in determining the time the child should spend with each of her parents. I have done so having regard to the reality of the situation for the child and her parents and not looking to whether it is desirable that there be equal time or substantial and significant time – that is, I have undertaken a practical assessment of the feasibility of the possible parenting regimes.[13]

   [13]         MRR at [15].

3. Whilst it may well be in the child’s best interests to spend equal or substantial and significant time[14] with each of her parents, the fact the mother will continue to live in Germany and the father in Australia makes it obvious that it is not reasonably practicable[15] for this to occur.

   [14]Defined in 65DAA(3) of the Act as follows:  a child will be taken to spend substantial and significant time with a parent only if: the time the child spends with the parent includes both: days that fall on weekends and holidays; and days that do not fall on weekends or holidays; and the time the child spends with the parent allows the parent to be involved in: the child’s daily routine; and occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   [15]The determination of  which is dependent upon consideration of subsection 65DAA(5) and the matters identified there: Collu & Rinaldo [2010] FamCAFC 53.

4. The only time that is reasonably practicable is time during school holiday periods with the parent with whom the child will not be living and, if that parent happens to be in the country in which she is living, the opportunity to spend time then also.

5. I accept that, at this time in her life, the child’s mother is the person with whom her greatest sense of comfort lies. She was, after all, described by the child’s father as a ‘good’ mum. I also accept that the child is really seeking to be reunited with her mother, the parent who, until March 2014, provided her primary care. Moving to live with her mother will reunite the child with T and provide her with the greatest opportunity to continue to develop that very important sibling relationship with him – a relationship which is unlikely to flourish without them living in the same household.

6. Whilst such a move would remove the child from the security of her school, her friends and would diminish her opportunity to spend frequent face to face with her father, paternal grandmother and other members of her extended paternal family, I am confident that the strength of her relationship with her father and paternal grandmother (in particular) is such that she will not suffer long term adverse consequences as a result. Their relationships will inevitably continue and she will, I have no doubt, have many future opportunities to enjoy travelling with her father during school holidays - as she has in the past.

7. Moving to Germany would provide the child with the significant opportunity to live in another country and experience all that it has to offer. Whilst there is always the possibility that the child may experience some teasing at the international school at which her mother proposes she attend in Germany, the same possibility exists here when she transitions from her current primary school to high school. I also accept that, as the international school to which the mother intends to send the child teaches the German curriculum via English speaking classes, the risk that the child may struggle to fit in or struggle with the content of the classes is, to some extent at least, minimised.

8. If she lives with her mother in Germany, the child will continue to have the opportunity to communicate with her father and paternal family via social networking means – a forum with which she is clearly very familiar and experienced – and during school holiday periods.

9. I wish to make it clear to both the father and members of his family that my conclusion that the child’s interests will best be met, at this time, by moving to live with her mother in Germany is not in any way the result of any adverse assessment of their care for, and parenting of, the child. It is simply that, in weighing this finely balanced case, I have concluded that it is better for the child to have the opportunity now to heal any damage to her attachment with her mother that her mother’s decision to leave Australia in March 2014 without her may have caused and that she have the ongoing opportunity to continue to develop her relationship with T. I am also confident that her relationships with them are so well established that they will endure the impact of geographical distance.

10. For the reasons outlined above, I have concluded that it is in the child’s best interests that she live with her mother in Germany.

11. I have no doubt she will be supported in returning to her mother’s primary care by both her mother and her father. I also have no doubt that both will act to ensure she continues to know she is loved and supported by all of those people who are so important to her. I am confident her father will do his utmost to shield the child from his disappointment that she will no longer live with him on a day to day basis.

How frequently should the child travel to Australia and how should the costs of this be borne?

1. The mother proposed the child travel to Australia for all but two weeks of the German summer school holiday period and for two weeks during either the Easter or autumn school holiday periods at her cost. That is, she proposed she would pay for two return flights for the child between Germany and Australia each year. She also proposed that the child travel on no less than two other occasions each year, with her father to be responsible for the costs of the same.

2. I am persuaded that it is in the child’s best interests that she have the opportunity to return to Australia on no less than three occasions each year – namely, in each of the Easter, summer and autumn holiday periods. Whilst it may well be that the father will also seek that she spend time here over the Christmas school holiday period, the duration of this seems a little less than the Easter and autumn school holidays and the impost on the child of the time needed to travel from Germany to Australia (and return) may make a trip at that time less feasible and/or desirable.

3. In arriving at the decision about the frequency of the child’s return to Australia, I have taken into account the desirability of affording to her the opportunity to spend holiday time in Germany. Whilst this clearly is important and may well enhance the child’s opportunities to develop friendships with, for example, her school friends, priority must be given to maintaining her relationships with her father and members of her paternal family in Australia and ensuring that she has as much opportunity as is realistically possible to return to spend face to face time with them.  

4. The evidence establishes that the mother’s financial position is significantly superior to that of the father. She and her husband have, on her evidence, an excess of income over expenses of no less than about 6000EUR per month. Whilst some of their expenses will increase when the child moves to live with them, any such increase is unlikely to deprive the mother of the ability to meet the costs of three return trips between Germany and Australia each year, as I have concluded is in the child’s best interests.

5. I am not persuaded that there is any necessity to ensure that the child’s father pays anything toward these trips to ensure that she sees him supporting her in spending time with him. He will be responsible for the cost of any additional trip the child may make to Australia in any year and will have the costs of her support during her time with him here. He is also highly likely to return to paying child support for the child in whatever amount is properly assessed.

Should the child complete the school year or term in Australia before travelling to  Germany to live?

1. I accept the submission made by Counsel for the Independent Children’s Lawyer (and supported by Counsel for the mother) to the effect that the decision that the child move to live with her mother in Germany should be implemented as soon as practicable. The matters upon which I rely in arriving at this decision are as follows:

   a)the desirability of ensuring, to the extent that is possible, that the child is able to commence high school in Germany at the start of the German school year - which is in August – rather than some three to four months later; and

   b)the desirability of ensuring that the child’s exposure to the highly likely (and understandable) distress and upset of her father and paternal grandmother and, I suspect, other members of her extended paternal family, is minimised; and

   c)to a lesser extent: the desirability of minimising the costs associated with the necessity for her mother to return to Australia from Germany to accompany the child on her trip there - so that funds can properly be applied to ensuring the child travels to this country to spend time with her father as provided for in the orders which will be made.

2. Additionally, given that the father intends to move from his home at Suburb D to live in an apartment in the City/Valley area of Brisbane in the next month or so, the early implementation of the decision I have reached for the child to join her mother in Germany would obviate the necessity for her to move from her home in Suburb D to an apartment and then to live with her mother in Germany.

3. I consider that these factors are such that they outweigh the desirability of the child being afforded the opportunity to end the school year in Australia with her cohort of friends.

4. I have no doubt that both of the child’s parents are more than capable of ensuring that the child has an appropriate opportunity to say her farewells to family and friends. I also have no doubt that both are more than capable of emphasising to the child that her move to live with her mother in Germany does not mean she will never return to Australia. In fact, she will return during the autumn (October) 2015 school holiday period.

5. A move to Germany does not mean the child will be unable to maintain her relationships with friends and family based here. She has already demonstrated the capacity to create her own YouTube channel and upload recordings about her day to day activities to it - this is highly likely to provide her with the forum through which she can recount her new experiences in Germany to her friends and family in Australia.  I have no doubt that, given their respective specialities in information technology, both of her parents will ensure her interactions via this form of social media occurs in a safe and managed manner.

The form of the Order made

1. As both parents told the Court they were confident they could work out the specific terms of the child’s travel between Germany and Australia, the orders which will be made are refreshing in their simplicity and absence of detail.

Enforceability in Germany of parenting Order made in Australia

1. Helpfully, the issue of the recognition and enforceability in Germany of orders made in Australia was discussed by the Full Court in Cape & Cape[16], to which I was referred by Counsel for the mother.

   [16] (2013) FLC 93-549; at [62] – [77]

1. The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children was signed at The Hague on 19 October 1996 (“the Child Protection Convention”[17]).  It is implemented in Australia by Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth).

   [17] See: s 111C Family Law Act (1975).

2. Whilst it remains that Germany is still not shown as a “Convention Country” in Schedule 1 to the Family Law Amendment (Child Protection Convention) Regulations 2003 (Cth), regard to the Convention establishes that Germany signed the Child Protection Convention in April 2003 and ratified the same in September 2010 - it was entered into force in January 2011.

3. Whilst Article 24 of the Child Protection Convention provides the ability to seek advance recognition in Germany of an order made here and that the procedure for such advance recognition is governed by the law of Germany, there is no evidence before the Court about the law of Germany. There is no evidence at all in relation to the issue of advance recognition being accorded to an order that the child live with her mother in Germany and spend holiday time with her father in Australia.

4. In the absence of the father’s clear and unequivocal stance that he thinks there will be no problem between the parents in terms of ensuring that the child has the opportunity to return to Australia on a regular basis to spend time with him and members of her extended paternal family here, the failure to adduce evidence to establish this fact[18] may have weighed the balance in favour of an order  restraining the mother from removing the child from the Commonwealth of Australia until, at the very least, the mother had obtained some indication about advance recognition[19] of the orders made here or had, in fact, obtained such advance recognition or a declaration of enforceability[20] in Germany of the orders made today.

   [18]Foreign law in Australia being treated as a question of fact, not law:  Neilson v Overseas Projects Corporation (2005) 223 CLR 331; Parkasho v Singh [1968] P 233 at page 250 per Cairns J; and s 174 Evidence Act 1995 (Cth).

   [19]         Article 24 of the Child Protection Convention.

   [20]         Article 24 of the Child Protection Convention.

5. I make particular mention of this because I intend that the mother fully appreciates the extent to which the father continues to repose trust in her as a parent and to emphasise my conclusion that, whilst he genuinely thinks it would be best for the child to remain living in Australia until she completes her secondary education, he appears to me to be a parent who has the capacity to place the child’s need ahead of his own and support her as she returns to her mother’s primary care and moves to live in a different country.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 August 2015.

Associate:    

Date:    4 August 2015