Maeraegh and Salter (No 2)

FAMILY COURT OF AUSTRALIA

MAERAEGH & SALTER (NO. 2)

[2010] FamCA 1191

FAMILY LAW – CHILDREN – Relocation to Scotland – Best interests – Substantial and significant time – Reasonable practicality – Psychological welfare of primary parent if not permitted to relocate

Family Law Act 1975 (Cth)

MRR v GR [2010] HCA 4

APPLICANT:

Mr Maeraegh

RESPONDENT:

Ms Salter

FILE NUMBER:

MLC

3427

2010

DATE DELIVERED:

24 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

8, 9, 10, 11, 12 & 15 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tulloch

SOLICITOR FOR THE APPLICANT:

Glenys Dolphin Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Stewart

SOLICITOR FOR THE RESPONDENT:

Catherine Gale, Family Lawyer

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Boymall

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lonergan

Orders

IT IS ORDERED THAT

The mother and the father have equal shared parental responsibility for the child F born … March 2007.
The child live with the mother.
The mother be permitted to relocate the child’s residence to Scotland from 1 May 2011.
The mother advise the father of the child’s departure date from the Commonwealth of Australia (“the departure date”) for the purpose of any relocation pursuant to this or any subsequent order at least 14 days prior to departure.
Pending the departure date the child spend time with the father as follows:
a.from 11:00am on Christmas Day until 6:00pm on 27 December 2010;
b.each Wednesday from 5:00pm to 8:30am Thursday commencing 29 December 2010; and
c.each alternate Saturday from 10:00am to 5:00pm commencing 1 January 2011;
d.each alternate weekend from 5:00pm Friday to 8.30am Monday commencing 7 January 2011;
e.at such further times as may be agreed between the parties.
All other questions of time to be spent and communication between the child and the father be referred into Court on a date to be fixed before Justice Mushin for the calling of such evidence and the making of such submissions as may be necessary.
Each of the mother and the father do all such acts and things as may be necessary to -
a.advise and keep the other advised of any significant health or welfare matters pertaining to and affecting the child, including but not limited to the names of treating medical professionals;
b.provide all and any necessary authorities to allow the other to liaise with and communicate with the child’s treating health professionals and teachers;
c.ensure that the father receives school and nursery reports, school and nursery photograph order forms and school and nursery notices, newsletters and like academic memorabilia;
d.advise and keep the other advised of their current residential address, current email address and telephone numbers.
Pursuant to s 65DA(2) and s 62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel

IT IS NOTED that publication of this judgment under the pseudonym Maeraegh & Salter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3427 of 2010

MR MAERAEGH

Applicant

And

MS SALTER

Respondent

REASONS FOR JUDGMENT

introduction

The parties were in a de facto relationship between April 2004 and January 2009. They have a son by that relationship who is nearly 4 years of age. He is the subject of these proceedings.
The parties' relationship was conducted in several different places both in Melbourne and overseas. The parties and their son are presently living in Melbourne. The father spends significant time with the child and seeks to ultimately spend equal time on a fortnightly basis with him. That is his primary application.
The mother's primary application is to live with the child in Scotland. She proposes that if I reject her primary application, she will live with the child in Melbourne. If I accept her primary application, there will be the consequential issue of what time and communication the father will have with the child and in particular, whether he will, at some time, move to live in Scotland so that he is able to have a closer relationship with his son.

The parties and their child

The father is Mr Maeraegh who was born in Germany in 1983 and is presently aged 27 years. He came to live in Australia with his family when he was a very young child. His parents live in regional Victoria and have done so for many years. He practices a profession and is employed by a Melbourne firm.
The mother is Ms Salter who was born in Scotland in 1981 and is presently aged 29 years. She also practices a profession and is also employed by a Melbourne firm.
The child is F who was born in Melbourne in March 2007 and is presently aged 3 years. He is in the primary care of the mother, spends significant time with the father and also attends Day Care.

Credibility

The parties asserted very different versions of the relevant facts. While that would often indicate an issue of credibility between them, fortunately in this matter with one or two exceptions on which I will make individual findings, that is not the case. In my view, their differences stem from different interpretations and understandings of their respective intentions rather than any attempt to mislead the Court. Those differences are, in all the circumstances, entirely understandable. Accordingly, I do not find it necessary to make a general finding of credibility with respect to the parties' evidence.

Relevant facts

The parties' relationship may be divided into several different periods. The period up until shortly before the separation is relatively uncontroversial insofar as these proceedings are concerned. However, the period immediately prior to the agreed separation date of 17 January 2009 when the father came to Melbourne from Scotland and the date of the mother's arrival in Melbourne on 29 May 2009, was seen by the parties as being fundamental. Also, the period from 29 May 2009 until the mother and the child left the father's residence at the end of October 2009, as well as the further period from that time until the present, were the subject of detailed examination during the trial. It is convenient for me to divide my consideration of the relevant facts into those periods.

April 2004 to January 2009

The parties met in Germany in April 2004. They commenced a relationship soon after they met. Approximately 4 months after they met the father returned to Australia and the mother returned to Scotland. In September 2004 the mother came to Melbourne where the parties continued their relationship. The mother returned to Scotland in August 2005 and the father followed her there about two months later. They both returned to live in Melbourne in February 2006.
As I have already found, the child was born in March 2007. At the time of his birth, the mother's mother, her grandmother and her sister came to Melbourne for six weeks to support the mother in her care of the child.
In June 2007 the parties returned to Scotland and then moved to Cardiff, Wales. They travelled to Scotland in December 2007 to spend time with the mother's family living in Scotland, approximately 50 minutes drive from Glasgow. The child became ill during this time and some criticism was made of the father for continuing a skiing holiday in Austria during the child's illness. Also at that time, the mother became ill and was hospitalised.
The parties were reunited in Cardiff in January 2008 and the mother graduated with a Masters degree in July of that year. In late 2008 the parties left Cardiff and holidayed in Germany with the father’s family. They arrived in Scotland on 9 January 2009 to stay with the mother's family from where they separated.

January 2009

It is common ground that when the parties arrived in Scotland on 9 January 2009 their relationship had broken down and they had agreed to separate. The physical separation took place on 17 January 2009. On that date, the father went to the Glasgow International Airport and bought a one-way ticket to Melbourne to travel on that day. There is a question as to what, if any, discussions were held between the parties on the previous evening. The father asserted that he had discussed his leaving with the mother at approximately 9 p.m. on the previous evening. On the mother’s evidence, corroborated by her mother, the parties together with the mother's family appear to have been playing Monopoly at that time. The suggestion that the conversation could not have occurred between the father and the mother because of that game seems to me to be untenable.
The mother asserted that the first that she heard that the father was actually flying to Melbourne on 17 January 2009 was when he rang her from the airport after he had bought the ticket. She asserted that he had asked her to bring his personal belongings including his snowboard to the airport which she did. It appears that the father’s plane left Glasgow for London and then Melbourne via Hong Kong either late on that afternoon or early evening.
In my view there is no useful purpose to be served in my making any finding with regard to whether there was a discussion between the parties on the evening prior to the father's departure. I am satisfied that the matter of that departure was peremptory with very little, or any notice to the mother. The best view of the evidence leads me to the finding that the earliest time at which the mother learnt of the father's intention was the previous evening.
The crucial aspect of these events is the question of what, if any, agreement there was between the father and the mother at the time of his departure that the mother and the child would follow him to live in Melbourne. I consider that issue under the next heading.

17 January 2009 to 29 May 2009

It is common ground that the mother and the child arrived in Melbourne from Scotland on 29 May 2009. As noted in the previous paragraph, the question of whether the mother intended to say for a short or indefinitely long period has been treated by the parties as being of extreme importance in my consideration of these applications. As I will discuss in due course, the way in which the evidence unfolded has, in my view, diminished the importance of that question but because the parties invested so much in the competing facts, it is appropriate for me to make certain findings on it.
The father asserted that when he left Scotland he and the mother had agreed that she and the child would follow within no more than several weeks. In response, the mother asserted that while she was always going to come to Melbourne following the father's departure, there was no agreement as to a precise date and certainly no commitment that she and the child would live in Melbourne indefinitely.
There is extensive evidence relevant to that factual dispute. In the first place, each of the parties was cross-examined at great length and detail on their respective versions. However secondly, there is a vast trail of e-mails between the parties on the issue. In my view, those e-mails are ambiguous but interestingly, at no time did either party specifically assert his or her precise position with regard to any alleged agreement.
During her final address, counsel for the mother provided me with an aide memoire providing a detailed summary and chronology of that exchange of e-mails. The e-mails set out in that document are too extensive to quote in their entirety and it is otherwise unnecessary. They are available for inspection. However by way of example, I refer to a number of them in the following paragraphs, partly in summary and partly quoted as indicated.
On 20 January 2009 the mother wrote to a friend on Facebook saying that she was “heading back shortly”, spending time in Glasgow because “… [the child] won't see mum and dad till June.” I infer an intention on the mother's part to return to Glasgow in June 2009.
On 2 February 2009 the father e-mailed the mother as follows:
If you don't want to come, that's fine, you stay in Scotland, you get some legal advice and you take me to court, and I am made to pay child support for [the child]. I see him once a year for two weeks and that (sic) the end of it. I’f (sic) you need money sell some stuff.
I honestly don't have a problem if you want to stay.
… don't ever say I owe you anything, cos I don't. If you need money, fire up your credit cards.
During February 2009 there was considerable correspondence between the parties with regard to documentation for the child’s passport and similar matters. The e-mails indicate that the mother intended to obtain employment in her profession when she arrived in Melbourne and the father was assisting her in that endeavour. It was submitted on behalf of the father that the mother's intention to obtain employment indicated that she saw herself as remaining in Melbourne in the longer term. While that is a tenable argument at least in part, it does not establish that the mother intended to remain in Melbourne with the child indefinitely. In particular, the mother wished to use the time in Melbourne to work in ways which would enhance her prospects of registration in her profession which is a procedure somewhat akin to an apprenticeship while being qualified to be employed.
On 9 March 2009 the mother wrote a group e-mail to a number of people from the child’s perspective saying that he was going to Australia and was looking forward to seeing his friends there.
There are also e-mails between the parties with respect to the mother having packed a number of boxes and sending them to the father in Melbourne. Again, while that is consistent with the mother remaining in Melbourne for more than a few weeks, it does not necessarily indicate her intention to remain in Melbourne indefinitely.
The previously cooperative relationship between the parties appears to have deteriorated sharply in April 2009. The mother complained to the father about his alleged failure to provide financial support for her and her trip to Melbourne. On 20 April 2009 she wrote an e-mail to the father asking whether he would be -
… giving us any money for [the child] and his requirements, nappies, food etc in the near future? I am short as (sic) have to pay the remainder of the flight this week.
The mother wrote a further e-mail to the father on 12 May 2009, this time in quite an angry tone, as follows:
Are you in any danger of giving money for [the child] in the near future? Because of your severe lack of financial support for your son, we will be coming to Melbourne for 3 weeks. You leave me no choice but to stay with family while I look for work and save enough for bond, deposit tec (sic) we must do what is necessary. I can't tell you how annoyed I am with you, I have no money left from my maternity payout or wages because you selfishly keep everything you earn to yourself. I have had it, all the money I have is paying for flights and money we will need when we are there because I don't have enough airmiles (sic) to cover them. Thank you for your unwavering support.
The father responded to that last e-mail on the same date. He commenced by asking what the mother expected of him and how much money she expected him to pay. He wrote:
… I guess the thing to keep in mind is that I left with you saying you would be out in two weeks. … Can you also clarify your short term plans, when are you coming out for 3 weeks? Maybe we could try and work all this out then. At this stage I am almost assuming you won't be coming as it's been “in two weeks” for the past 3 months. If you could maybe just give me some concrete information as to your future plans. … To be honest I don't know why we are discussing the money, it is the secondary issue, our priority should be a solution where all parties are comportable (sic). Tell me how we can work this out, rather than this just dragging along, let's get some clarity for both of us and then we could move on.
I particularly note that the father did not assert in that e-mail that the mother was in breach of an agreement to come to Australia indefinitely. He did not dispute the mother's assertion that she was coming for three weeks although I accept that that appears to be at least in part in anger at what she saw as being the father's unreasonable withholding of financial support.
On 14 May 2009 the mother responded to the father in significantly more conciliatory tones. She informed him that they were arriving on 28 May and that she had an interview with a firm in Brisbane. The mother also expressed her relief that some medical tests had returned a negative result.
Shortly before her arrival, there was further correspondence about the whereabouts of chattels which is not significant. As previously noted, the mother and the child arrived in Melbourne on 29 May 2009.
There is no evidence to make a clear finding on the competing views of the parties on this issue. As noted above, the father did not take issue with the mother’s angry statement that she was only coming for three weeks and did not otherwise claim a prior agreement in the written material. Likewise, there is no evidence to substantiate the mother's assertion that she and the child were only coming to Melbourne for a relatively short, finite period.
In my view, the father believed, more in hope than actuality, that the mother and the child would live in Melbourne for at least an extended period. However, other than in his oral evidence, there is nothing to establish to the appropriate standard that that was a clear agreement between them. Conversely, the evidence does not establish the mother's position which was effectively that her stay in Melbourne was a visit, albeit one which may have lasted for some months.
Throughout this period, the parties were separated and there was no suggestion of any attempt at a reconciliation. That fact alone is contrary to the proposition that the mother and the child were coming to Melbourne for an indefinite period. The mother’s investigations of the availability of employment are equally inconclusive of that proposition.
Accordingly, I find that it is probable that the mother came to Melbourne with the child to enable the father to spend time with him and to obtain employment first, to earn money to enable her to live and maintain the child and secondly, to further her prospects of registration in her profession. I speculate that it was always possible that she may have enjoyed living in Melbourne sufficiently to stay here for an extended period. However, that is no more than speculation and is not supported by the evidence.

29 May 2009 to 31 October 2009

The mother and the child arrived in Melbourne on 29 May 2009. By agreement, they went to live at the father's rented premises in the inner city area. They lived in a separate room and it is common ground that there was no resumption of their de facto relationship. There was no intimacy between them and they both swore that they were living separately under the one roof.
The totality of the evidence satisfies me that this period was a very destructive one in the parties' relationship and could not have been in the child’s best interests. On the positive side, the father spent time and communicated with the child to a far greater degree than would have occurred had they been living in separate premises. However, the mother's evidence satisfies me that the relationship between the parties became increasingly negative.

The mother asserted that the father is a controlling person who has, for many years, at least verbally abused her. There is some evidence to suggest that on occasions he has been physically violent towards her. My observation of both parties satisfies me that the father can be quite dogmatic and I could well see his potential for control, particularly in circumstances where he may not be getting his own way. I am satisfied that both parties would have contributed to that situation.
In my view it was a mistake for the mother and the child to live in the father's home. They had been engaged in an intimate relationship which had broken up in difficult circumstances only a few months earlier. My observation suggests that they still have issues between them which have not been resolved. The potential for difficulties arising in circumstances where they are living separately under the one roof with that background is obvious.
While she was living in the father's home, the mother obtained employment with a Melbourne firm. She has continued in that employment until the present time. There is a possibility of that employment ceasing at the end of this year. Despite the negativity of their relationship during this period, the parties appear to have appropriately parented the child.
It is common ground that the mother and the child ceased living at the father's home on 31 October 2009 or within a day or two of that date. The circumstances of that were a major issue between the parties. The father alleged that the mother had left in order to further a relationship with a man whom she had met. There is evidence of a Facebook message from the mother to a friend of hers which is very complimentary of that person. The mother swore that she only went out with him on two occasions. There is no evidence to challenge that.
The mother swore that her reason for leaving the father's home was his constant verbal abuse and like behaviour. As I will note in due course, the issue of violence is not being relied on by either party as being a relevant factor in my determination of these applications. However some time was spent on the issue of violence during the trial. I am satisfied that after a period of five months during which the parties lived separately and apart under the one roof relations between them were very strained and the continuation of that situation, at least for the mother, was intolerable. In my view, it does not matter whether the mother was pursuing another relationship. On all of the evidence, if it was relevant, that was only very short term. For whatever reason the mother and the child left the father's home, it was ultimately for the best and particularly so for the child.

31 October 2009 to December 2009

When she left the father's home, the mother told him that she would be taking the child back to Scotland to visit her family. She said that that would be for a period of two to three weeks. The father agreed to that and believed that it had occurred. Unbeknown to him, the mother's mother, the maternal grandmother, had arrived in Melbourne by arrangement with the mother only a couple of days prior to the mother's leaving the father's home and had taken the child with her back to Scotland and without the mother. The mother remained in Melbourne. This was a subterfuge by the mother which was discovered by the father when the mother was seen in a street in Melbourne by a mutual friend. That friend threatened to tell the father unless the mother did so. The mother told the father who was, not surprisingly, extremely angry.
Despite exploring the facts of this departure in great detail, I remain at a loss to understand why it occurred. The maternal grandmother swore that it was for the child’s protection. There is no evidence to suggest that the child required protecting. There is no history of the father harming the child and there is no evidence to suggest that the father might have stalked the mother or behaved in some other unacceptable manner towards her. The evidence satisfies me that once the mother left the father's home, there was no remaining safety issue. To his credit, the father was entirely accepting of the proposed visit to Scotland by the mother and the child which suggests that no matter what may have brought about the physical separation of the parties, there was no ongoing problem from which protection was required either for the mother or the child.
The maternal grandmother also gave evidence that the trip to Scotland enabled the mother to find accommodation for herself and the child and otherwise organise to live separately. She also swore that she could not have looked after the child in Melbourne while the mother was doing those things because she had to return to her employment as a nurse in Scotland. None of those facts in any way excuses the subterfuge which was perpetrated against the father by this incident. I am critical of the maternal grandmother for her part in the deception of the father.
The maternal grandmother returned to Australia with the child in December 2009, having been away for a period of six or seven weeks. From their return the father spent time with the child which I detail in the following paragraph.

December 2009 to the present

Since the child’s return from Scotland, the father has spent time with him regularly on an increasing basis. He now spends four nights per fortnight with him which is not consecutive but is broken up during the fortnight. The parties appear to have achieved a better communication than that which existed between them for approximately the second half of 2009.
There have been some difficulties. The first of those was an application by the mother on 23 February 2010 to the local Magistrates Court seeking an intervention order against the father. In her application the mother alleged verbal abuse of her by the father. She also alleged that he had physically assaulted her on two occasions, the first in 2008 when he had kicked her in the thigh and the second in 2009 when he had grabbed her by the neck and forced her into a wall. The maternal grandmother gave evidence which at least partly corroborated the second of those allegations. The parties settled the mother's application by written undertaking by the father that he would not commit family violence against the mother, as defined in the undertaking.
The matters referred to in the previous paragraph are potentially very concerning. There was some cross examination, particularly of the father, on issues of violence, which he denied. As I have already noted, it is not submitted that the issue of violence is relevant in my ultimate determination of these matters. In the circumstances, the father may consider himself fortunate that these facts are not relied upon in that context.
The second significant difficulty between the parties was the child’s hospitalisation at the Royal Children's Hospital in Melbourne for what appears to have been a serious illness. He was admitted to hospital on 18 August 2010 and discharged five days later. For at least several hours of that time the child was admitted to intensive care which was obviously an extremely difficult time for both the parties. However, during that time the father behaved in what I consider to be an unreasonable way. In circumstances in which the mother was obviously extremely stressed and distressed, the father demanded make up time with the child through the mother’s solicitor. To his credit, he conceded that he had not acted as he should have. However, the mother may have seen fit to allow the father to spend time with the child on their own in the hospital. Ultimately, I see these events as being a manifestation of the difficulties in the relationship between the father and the mother. They do not appear to be more significant than that and are certainly not to be seen as having the significance of the allegations of violence referred to above.

The expert evidence

Two expert witnesses gave evidence in these proceedings. The first of those was Dr L, a clinical and forensic psychologist. His report is dated 12 October 2010 and is annexed to an affidavit sworn two days later.
The second expert is Mr S, a Family Consultant attached to the Melbourne Registry of the Court who initially prepared a Children and Parents Issues Assessment and later completed a Family Report, dated 25 June 2010 and an updated report dated 5 November 2010, both of which are evidence before me.
Both Dr L and Mr S gave oral evidence and were cross-examined in these proceedings. Their evidence was consistent and professional. The final submissions of Counsel indicated differences of views but both the experts were of great assistance. I turn to an analysis of their evidence.

Dr L

Dr L has been in private practice since 1983. Prior to that, he was employed as a Family Consultant by this Court attached to the Melbourne Registry. Dr L has been consulted by the mother since September 2010 on referral by her solicitor.
Dr L expressed the opinion that the mother -
… appeared resilient and psychologically robust. She presents as intelligent, articulate and thoughtful, and showing no signs or symptoms of psychiatric disorder.
3.At the same time, she initially seemed flat and passive in relation to the dispute, as if she was unable to comprehend how the father could have exploited her attempt to support the father-son relationship. Since that time, she has presented as frequently tearful, both distressed and visibly outraged by the view of herself as having been trapped in Australia by [the child’s] father … .
Dr L reported the mother having related facts to him which essentially corroborated the essence of her case. In particular, he reported her having referred to the following:
a)her purpose in coming to Australia was first, to assist the father in furthering his relationship with the child and secondly, as a working holiday;
b)friends warned the mother that the father might litigate the question of her return to Scotland but she was “unable to believe that he would act in that way …” ;
c)she regarded it as her responsibility “to provide [the child] with the best opportunity to establish and develop a relationship with the boy's father”; and
d)the mother expressed “an array of concerns” with regard to the father's parenting of the child.
Dr L expressed a number of opinions with regard to the mother’s psychological health as follows:
13.The impact of being forced to remain in Australia would likely be profound, with [the mother] reporting that it would be “devastating to be so many miles from our home and family … . My mum can't stay much longer now … it would be bad”.
…
15.In that context, I cannot rule out the possibility of clinical depression in the event that she is forced to remain in Australia.
16. In my view, she presents attitudes and accounts of her actions that credibly reflect upon her as a loving, committed, and capable mother. She has frequently made comments that show sensitivity to [the child’s] personality, emotional state, and developmental capacities.
17. In that context, I would not predict that her level of parenting would be likely to deteriorate significantly; rather, I would anticipate that she would be likely to compensate in order to protect [the child], but would be psychologically wounded in relation to her internal emotional life.
…
20.Although in some respects these optimistic and positive attitudes have enabled her to succeed in life, doing postgraduate [study] and managing parenting, and undertaking a lengthy period in Australia, they have also left her appearing naïve and even innocent, and disregarding the potential consequences of decisions she made.
21.As just one example, her decision to stay in [the father's] home, when she viewed him as bullying and intimidating, was unwise and potentially placed [the child] at risk of harm.
22.At the same time, [the mother] has responded very strongly to therapy, and has now taken a considerably more assertive and proactive approach to dealing with the situations confronting her.
In his discussion in which he synthesised his views, Dr L wrote:
1.[The mother's] psychological functioning is unusually robust and resourceful. There are no indications of psychiatric disorder, and their general capacities present at a high order;
2.She presents as a loving and unusually capable mother in relation to her parenting attitudes, her determination to attend to her son's welfare, and a displayed understanding of her son's needs;
3.I have no doubt that she will support the relationship between [the child] and his father when she returns to Scotland, and views it as very much in [the child’s] interest to have a strong attachment to his father;
4.In my view, notwithstanding her fundamental strengths, [the mother's] psychological resources have been virtually exhausted by the fact (sic) and circumstances of the dispute, and by her severe apprehensions about the possibility that she will be forced to remain in Australia;
5.In my opinion, she clearly and unambiguously viewed the separation in December 2008 as final, and her tenure here in 2009-10 as temporary and based upon her training requirements and the desirability of assisting the father-son relationship.
In cross-examination, Dr L did not depart from his opinions quoted above. Dr L reported certain facts which were at variance with some of the evidence but did not cause me to question the credibility of any witness in these proceedings. The differences were understandable in the circumstances.
Quite properly, counsel for both the father and the ICL concentrated on the question of the psychological effect on the mother of her being required to remain in Australia. Of all the issues which were the subject of Dr L’s evidence, that was the one which he emphasised most. Consistent with my finding in the previous paragraph, Dr L maintained his opinion with regard to the potential psychological effect on the mother of her being refused permission to live with the child in Scotland. Because the proposals of the parties referred to below raise the important issue of when the mother should be permitted to go to Scotland with the child if I accede to her application, Dr L was cross-examined on that issue in detail. He ventured the view that it would be quite “realistic” to delay any return until February or March 2011. However, he also expressed the opinion that a delay until June 2012 “would be potentially catastrophic”.
During cross-examination on the question of a potential date for return Dr L swore that he would be concerned about the mother's psychological health were she to be detained in Australia much later than approximately March 2011. Further, he expressed very significant concern with regard to the mother being required to live in Australia indefinitely. Dr L also ventured the opinion that a delay in until June/July 2011 would be “increasingly problematic, particularly if she doesn't have a job.”

Mr S

Mr S did not provide a summary of his professional experience as evidence in these proceedings. However, he is a Family Consultant attached to the Melbourne Registry of the Court. He has appropriate tertiary qualifications which were not challenged.
Mr S’s Issues Assessment referred to above was designed to raise relevant issues for the parties' consideration. The essence of his evidence was contained in his family report referred to above. Mr S had the advantage of interviewing both parties separately and together as well as observing their interaction with the child.
Mr S noted the dispute as being whether the mother should live with the child in Australia or Scotland and particularly referred to the factual dispute discussed at length above with regard to whether the mother came to Australia with the child to live indefinitely or as an extended holiday. He correctly noted that that issue, together with others was a matter for the Court to make findings on as necessary. Mr S reported many facts as related to him by the parties, the relevant ones of which are the subject of findings in these reasons for judgement.
In his evaluation of the relevant issues, Mr S referred to the “likely consequences” of the child living in Scotland with his mother and his father remaining in Melbourne. He wrote:
27. [It] is accepted by both [the mother] and [the father] that if [the child] is permitted to live in Scotland, with his father remaining in Australia, it will have a significantly limiting effect on the amount of time they will be able to share as [the child] matures and develops, which in turn will have a negative impact on the nature and quality of their potential relationship throughout their lives. These issues cannot be avoided.
28. It is also accepted by both parents, and has been demonstrated during the preparation of this report, that [the child] shares a close and positive bond with each of them. [The parents] agree that it would overwhelmingly be in [the child’s] best interest if he was able to continue on the path they are currently endeavouring to establish, in which he is able to spend significant and substantial time with both of them each week/fortnight, in a manner that could be progressed or adapted to meet his needs as he matures and develops in his relationships with them. For that to be achieved, in view of the current application and response, at least one of the parents would have to significantly altar their position. Either [the mother] would need to agree to remain in Australia with [the child] or [the father] would need to relocate and live close-by to them in Scotland, and both parents state that they have given serious consideration to these options.
29.In assessing the likely impact for [the child] of living “on the other side of the world from me,” as described by [the father], consideration must be given to his attachment to his parents and his current stage of development. At three and a half years of age, [the child] could be described as in the upper reaches of the attachment stage (approximately the first 3-4 years of a child's life). From the age of two, children acquire representational and memory skills that allow them to relate to their environment in an active way, so that they do not require the constant attention of their parents and begin to understand that parents can have a different point of view. At the same time, they are able to cope with short periods of separation from their parents.
30.The fact that [the child] has only recently reached this stage in his relationship with [the father] is problematic in terms of [the mother's] application, highlighting the fact that he is very young to have his regular interaction with his father effectively removed from his life. The experience would certainly be traumatic and it is difficult to assess the extent to which [the child] could be expected to understand or cope with the sudden and significant change in his relationships with his parents - given the nature of his relationship with [the mother] will also change, considering her role as, effectively, a “single-parent” and the roles that would subsequently be filled by the maternal grandparents.
Mr S also addressed the issue of the psychological consequences to the mother of not being allowed to live with the child in Scotland. He wrote:
33. If the decision is made not to allow her to leave Australia with [the child], it is likely to impact on her psychological well-being, as suggested by her clinical psychologist in the affidavit material. This could, in turn, impact on [the child’s] emotional well-being, given that [the mother] may experience difficulty meeting his physical and/or emotional needs while struggling to cope with the reality of her circumstances. [The father] has not proposed that [the child] should live with him, if he remains in Australia, and it would be preferable for [the child] to continue living with [the mother] for the majority of his time, as per the status quo, so that he experiences minimal change.
In reference to the last sentence of that quotation, I note that the father has, in fact, applied for equal shared time with the child. I will consider that further below.

Mr S recommended that if the mother were permitted to relocate to Scotland, it should be on the basis that the father have as much time and communicate with the child to the greatest degree possible. In the event that the child were permitted to live in Scotland with the mother and the father decided to relocate there, -
… an arrangement that replicates the status quo as closely as possible should be implemented, dependent on living and (sic) arrangements and work commitments of each parent.
Also in his recommendations, Mr S again addressed the question of the potential psychological effects to the mother of being required to remain in Australia with the child. He wrote:
If the mother is not permitted to relocate with [the child], a continuation of the status quo should occur, with the mother continuing to access therapeutic counselling to assist her in coming to terms with living arrangements that would cause her significant levels of ongoing stress.
During cross-examination, Mr S revised his views with regard to the maintenance of the status quo whether the child lives in Melbourne or Scotland. He acknowledged that it was feasible for the child’s care to ultimately move to equal shared time between the parents, providing that the parties lived within a close distance of each other. He suggested that such an alteration to the status quo might be introduced over a period of time. He also expressed the view that the present arrangement of four nights per fortnight with the father might move to five nights per fortnight immediately and be maintained until any relocation, if that is the decision of the Court. If the Court's decision were in favour of relocation and the father also relocated, a starting point of five nights per fortnight to the father would be appropriate.

The parties' proposals

I now turn to a summary of the proposals for resolution of this matter put on behalf of each of the parties through their respective counsel. In doing so I emphasise that each of the proposals contains significantly greater detail than is summarised below. To the extent that that detail is in dispute, I will determine it when I have determined the essence of the competing applications. The detail is not otherwise relevant to the overall determination unless I find to the contrary.

The father

The father's primary application is to have equal time with the child as between himself and the mother. He proposed that equality be introduced over a period of time, commencing with five days per fortnight and moving to seven days per fortnight by 1 March 2011. If I were to accede to that application, it would follow that the mother would be restrained from removing the child from Melbourne.
At my urging, during the latter part of this trial counsel for the father put an alternative proposal to me in the event that I were to accede to the mother's application to move to live in Scotland with the child. As a primary position he submitted through counsel that any move should not take place prior to 1 July 2012. His alternative proposal is, itself, put in the alternative. That last alternative is based on the father's present indecision as to whether he would move to live in Scotland to enable him to spend considerable time with the child. If he were to move, he proposed that there be a similar introduction of spending equal time with the child over a period of time.
In the event that the father decided not to move to Scotland, he proposed spending time with the child in Scotland during and around Scottish school holidays and also sought an order for the mother to bring the child to Melbourne to spend time with him at least once each year.
The father also proposed various other means of communication including electronically by computer. Those matters were the subject of broad agreement between the parties.

The mother

The mother's primary application is to relocate with the child to live in Scotland approximately 50 minutes driving time from Glasgow. In particular, the mother seeks to relocate no later than 14 March 2011. In the event that the father does not move to live in Scotland, she proposed travelling to Australia for three weeks each year during the northern hemisphere summer school holidays in June/July to enable the father to spend time with the child. She also proposed that subject to his giving her reasonable notice, he could have not less than two periods of up to three weeks each year during and around the other northern hemisphere school holidays. She proposed certain conditions on those suggestions, essentially being that at least at first the child be returned to her overnight at regular intervals, rather than have a three-week block away from her at any one time.
The mother proposed that in the event that the father lived in Scotland within a reasonable distance of where she was living with the child, that he have five nights per fortnight with the child during school terms and one half of the child’s school holidays.

Independent Children's Lawyer

Counsel for the Independent Children's Lawyer (ICL) essentially supported the mother's proposal to relocate to Scotland. In particular, it was submitted that the relocation should take place on or after 14 March 2011. In the interim, there should be time spent between the father and the child on essentially a five nights per fortnight basis.
It was proposed that on the assumption that the father remained living in Australia, the mother should bring the child to Australia during the northern hemisphere summer school holidays to enable the father to spend time with him over a period of no less than four weeks in 2011 and 2012 and no less than five weeks in 2013 and each year thereafter, but in the first two years returning to the mother for a day at regular intervals. Further, the mother was also to bring the child to Australia for not less than two weeks in each alternate Christmas school holiday commencing in 2012/2013 with the father to spend time with him but again not in one continuous block.
It was proposed that when the child turns six years of age in 2013, there be a significant extension to the time which he would spend with the father in both the northern hemisphere summer and Christmas school holidays. The father should also be permitted to spend significant time with the child in the Easter and October school holidays for no less than three (3) weeks in the event that he travelled to Scotland, with reasonable notice to the mother.
In the event that the father decided to move to Scotland and within 50 km of the child’s residence, he should spend five nights per fortnight during school term and one half of school holidays with the child.

Discussion

Best interests

I now turn to a consideration of the merits of these applications. In doing so, I must have regard to the various matters in Part VII (“legislation”) of the Family Law Act 1975 (“the Act”). The fundamental provision is that the child’s best interests are the paramount consideration. “Paramount” means “most important” rather than “sole” or “only”. I will consider the various matters which must be taken into account in determining the child’s best interests below.

Objects and Principles

Section 60B of the Act specifies various objects of Part VII in order to ensure that the child’s best interests are met. Those objects place a primacy on both parents being involved in the child’s care and upbringing, promote his having a meaningful relationship with both of them, protecting him from physical or psychological harm including abuse, neglect or family violence and ensuring that he receives adequate and proper parenting. They also ensure that the parents -
… fulfil their duties, and meet their responsibilities, concerning the care, welfare and development …
of the child.
Subsection (2) specifies a number of principles which underlie those objects. They are as follows:
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 is important to note the Parliament's emphasis of the child’s right to know and be cared for by both his parents and the parties' duties and responsibilities to provide that care. It is also important to note that both principles operate subject to their not being contrary to the child’s best interests. In this matter, both parties will continue to be involved and the child will be afforded his rights as referred to in the legislation. The ultimate question is the application of his best interests to the circumstances incorporated in the proposals of each party.

Parental responsibility

Division 2 of the legislation provides for the concept of “parental responsibility”. That term is defined as follows:
61B. In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
The legislation provides that both parents retain parental responsibility of their child until he/she attains 18 years of age. The legislation also establishes a rebuttable presumption of shared parental responsibility.
The father and the mother, supported by the ICL, are agreed that no matter what I decide with regard to their competing applications, they will retain shared parental responsibility of and for the child. In my view, that is an entirely appropriate agreement and the parties are to be congratulated for it.

Equal time and practicability

The consequence of the parties' agreeing to share parental responsibility for the child is that I am required to consider the question of the child spending equal time with each of his parents (s65DAA(1)). There are two aspects to that consideration. The first of those is whether it would be in the child’s best interests to spend equal time with each of his parents (s65DAA(1)(a)). The second is the consideration of whether spending such equal time “is reasonably practicable” (s65DAA(1)(b)); (MRR v. GR, [2010] HCA 4, (2010) FLC ¶93-424).
The proposition enunciated in the previous paragraph requires the consideration of the primary applications of each of the parties being on the part of the father, that the mother remain living with the child in Melbourne and that the parties equally share time with the child and on the part of the mother, that she be permitted to relocate with the child to Scotland. The question of practicability turns on the child’s best interests as they relate to those competing proposals.
In considering the question of practicability, I must have regard to a number of factors as follows:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

Best interests relating to equal time and practicability - primary considerations

The legislation sets out a number of factors which I must consider in determining what is in the child’s best interests (s60CC). They are divided into primary considerations and additional considerations.
The first of the primary considerations concerns the benefit to the child “… of having a meaningful relationship with both of [his] parents.” All parties are agreed that it is in the child’s best interests to have a meaningful relationship with each of his parents. I agree with that and am satisfied that within the ambit of the parties' respective proposals, the child will have such relationships.
The second primary consideration is -
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
During the trial, the father and the mother, together with their respective mothers, made criticisms of the other parent which might be taken to have suggested that either parent might expose the child to such a harm. Ultimately, counsel did not address me with the suggestion that that was a relevant factor in my consideration. The entirety of the evidence persuades me that, subject to criticisms which I will make of the grandparents below, there is no such risk of harm to the child such as to make this provision relevant in my consideration.

Best interests relating to equal time and practicability - additional considerations

I now turn to a discussion of the additional considerations relating to the child’s best interests with regard to his spending equal time with the parties and in doing so, consider the practicability of such an order.

The child’s wishes

I am required to consider any view expressed by the child which may be relevant. In doing so I must also consider what weight should be afforded to such view. The child is aged a little less than four years. The issues which I must decide are extremely difficult, even for adults, and he cannot be expected to have any opinion which might be relied upon as a relevant factor in my consideration.

The child’s relationships

I am required to consider the nature of the child’s relationships with his parents and other persons, in this matter including his grandparents. With respect to his relationships with his parents, I again quote the statement by Mr S:
It is also accepted by both parents, and has been demonstrated during the preparation of this report, that [the child] shares a close and positive bond with each of them.
I also accept that the child has an appropriately close bond with each of his grandparents.
The evidence clearly establishes that the mother has the closest and primary relationship with the child. She has been his primary carer for the entirety of his life with significant and increasing involvement by the father. However, I regard that primary relationship as being a very important consideration in my determination of these applications.

The practical difficulty and expense of spending time and communicating

This consideration is significant in the context of these applications. In the event that I were to accede to the mother's application to relocate and the father decided that he would not relocate, there would be significant expense, probably to both parties, at least of air fares to enable the child to spend time with his father. The parties are agreed that they would use telephone and computer technology to enable communication between the child and his father. Neither party is earning a large income although their professional futures give me optimism for their future financial circumstances. Despite the potential significance of this factor, there was no submission to suggest that it should be decisive in my determination.

Promotion of the child’s relationships

The precise formulation of this consideration in the legislation is as follows:
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
Despite criticisms and some actions of each parent towards the other, I am confident that the mother and the father understand the importance of each of them promoting the child’s relationship with the other parent. With the exception of the child’s hospitalisation referred to above and perhaps several other minor matters, the parties' cooperation with each other in ensuring that the child spends significant time with each of them has been remarkably positive. In my view, when the parties are away from the pressures and stresses of this litigation, that cooperation is likely to improve even further.
Regrettably, I cannot be as positive with regard to the respective grandparents' preparedness and abilities to promote the child’s relationship with the other parent and grandparents. During the trial, I had reason to be critical of three of the child’s grandparents. Only his two grandmothers gave evidence in these proceedings and were cross-examined. Each of them made unwarranted criticisms of the other parent which I deplored at the time. They both had difficulty expressing anything positive about the other parent.
The paternal grandfather was sitting in Court, often next to or behind the father, for most of the duration of this trial. At one point the mother broke down in the witness box while being cross-examined by counsel for the father. In my view, the mother's emotional reaction was entirely appropriate in all the circumstances. The paternal grandfather smiled at the emotional reaction of the mother. I took exception to his behaviour and informed the father's counsel accordingly. While counsel apologised to me on behalf of the grandfather, I regarded his behaviour as being symptomatic of the negative attitude which he and the paternal grandmother held towards the mother.
In my view, the attitudes of the paternal grandparents referred to in the previous paragraph are comparable to, and equally negative as, those of the maternal grandmother. I have been, and remain, critical of those attitudes which are contrary to the child’s best interests. I cannot be confident that those attitudes will improve, no matter what my determination of these applications might be.
Having made the findings with regard to the grandparents above, there are nevertheless some encouraging signs. The first of those is evidence by the maternal grandmother that she recently went to a cafe with the father and they spent approximately one hour talking together. The second is the invitation by the father's family to the mother to attend the paternal grandmother's birthday party which appears to have been a pleasant event. I can only hope that relationships develop along those more positive lines.

Status quo

I am required to consider the effect on the child of any change in his circumstances including any separation from either the mother or the father or from any of his grandparents or other relevant person. This factor is often referred to as the “status quo”.
The most relevant consideration in this regard is the mother's proposed relocation with the child to Scotland. In that event, unless the father also decides to relocate to live in the same vicinity, there would be a significant change in the status quo insofar as the relationship between the child and the father is concerned. In my view, that is one of the most significant issues in my determination of these applications. I accept the evidence of Mr S that the child’s bonding with his father would be adversely affected if the mother were permitted to relocate either immediately or in the relatively near future. That primarily arises from the child’s age at which his ability to remember his relationship with his father is not as highly developed as would be desirable and as may be expected in the next year or two. Amongst other issues, that last proposition raises the question of whether, if I were to accede to the mother's primary application, the relocation should take place immediately or whether there should be some delay in it.

One aspect of the status quo which will not change is the mother's primary parenting. However, that must also be qualified by the question of whether there should be an increase in the father's time with the child to equality in the alternatives of acceding to the mother’s relocation application and the father deciding to relocate himself or of otherwise denying the mother's relocation application.
No matter what my determination of the parties' primary applications, grandparents on one or other side of the child’s family will have a significantly reduced relationship with him. That it is an inevitable consequence of these applications. In light of my previous findings, I am unable to differentiate between the grandparents in that regard and find that their respective relationships with the child have no relevance to my determination.

Parenting capacities

The question of parenting capacities is fundamental to my determination of these applications. It is therefore important to quote the provision from s60CC(3) of the Act verbatim. It is as follows:
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Both parties, as well as all the grandparents, have the capacity to care for the child. It is sufficient for me to refer to my previous criticisms of the grandparents without further comment.
In this respect it is necessary to concentrate on the capacities of the mother and the father. Both of them have significant capacities to care for the child and their commitment to that care is very high. Physically and materially, despite some criticisms of each other, I admire their respective approaches to parenting, albeit that they are quite different in many respects. Nevertheless, the evidence of the expert witnesses detailed above demonstrates a fundamental issue. Both parties demonstrated high levels of physical and emotional distress for large periods of this trial. Understandably, they found the experience to be extremely stressful. That stress was manifested appropriately by each of them.
The expert evidence satisfies me that there is a significant difference between the parties in their ability to deal with the emotional stresses of the issues raised by these applications. I accept the evidence of Dr L that there is a substantial risk to the mother's psychological and emotional health if I were to refuse her application to relocate with the child to Scotland. While it might be possible in other circumstances to minimise the significance of Dr L’s evidence because he is the mother's treating psychologist, the fact that it is at least partly corroborated by Mr S elevates its weight to the extent that, in my view, it would be dangerous to ignore. Were the mother to become clinically depressed as is postulated by Dr L, there would be a substantial risk to the child by the likely consequent diminution in her parenting abilities.
While it was not argued on behalf of the father, I have given consideration to the genuineness of the mother's reactions as I observed them in Court and as reported by both Dr L and Mr S. In my view, those reactions were appropriate, consistent and genuine. Further, they were consistent with what I have found to be the mother's understanding that she was not coming to live in Australia with the child indefinitely.

Cultural issues

I am required to consider the issues of culture and like matters. The father is German and the mother is Scottish. Accordingly, each of them has traditions and cultures from which the child will benefit as he grows up. Obviously, in the event that the mother relocates to Scotland, there will be less opportunity for the father's culture to be conveyed to the child than there would be of the mother's culture. However, again no submission was made that this factor should be in any way determinative of these applications.

Parents' attitudes to responsibilities of parenthood

In my consideration of this factor, I refer to my previous discussion of parental relationships, capacities to parent and like matters. There is no other relevant matter.

Other additional considerations

There are a couple of factors which are not relevant and which I refer to by way of completeness. Despite some allegations referred to above with regard to family violence, it was not submitted that that issue was relevant to my determination of these applications. In my view, that is appropriate.
Further, while there were proceedings in the State Court in relation to family violence, those proceedings are not relevant.

Final orders

These proceedings were conducted on the basis that I should finally determine the competing applications rather than make interim orders. I agree with that approach as being in the best interests of the child.

Exercise of discretion - equal time or relocation

I have already found that a determination of whether the child should spend equal time with each of his parents if the mother were authorised to relocate with him to Scotland must turn on the two questions of first, whether it is in his interests to spend equal time in accordance with the father's application and secondly, whether it is practicable to make an order for equal time.
As I have already found, the mother has been the child’s primary carer throughout his life. While it appears from the evidence of Mr S that it may be in the child’s best interests to ultimately move to equal shared time, those interests do not require such a move in the immediate, or even the mid term, future. That proposition is supported by Mr S in his recommendation that in the event that the mother is required to remain living with the child in Melbourne, the present status quo should be maintained. That status quo is for a division of the child’s time on a fortnightly basis of 10 nights to the mother and 4 nights to the father. While it is feasible to vary that arrangement by one night in favour of the father, the evidence of Mr S persuades me that equal shared time should not be considered in the immediate future. While rejection of an immediate order for equal shared time may be seen as being a dismissal of the father's primary application, the fact that it is a feasible result at some time in the future results in the need to maintain it as a consideration.
The ultimate question in this part of my consideration of the primary applications is that of the practicability of an order for equal shared time. In that regard, the expert evidence referred to above with regard to the risk to the mother's emotional and psychological health if she were required to remain living in Melbourne with the child is, in my view, decisive. In the context of these applications, that expert evidence creates a situation in which equal shared time is in competition with practicability. It is not possible for the two propositions to coexist unless the father decided to relocate to Scotland and live in close proximity to the mother. Even then, reference to my discussion in the previous paragraph makes equal shared time contrary to the child’s best interests, at least in the short to medium term.
There is a further problem with the two competing proposals which arises out of the father's evidence with regard to his intentions. On a number of occasions, the father was given the opportunity to commit himself to relocating to Scotland in the event that the mother were authorised to relocate with the child. Without criticism, the father declined to make that commitment. Understandably, he took the position that there were a number of factors to be considered in making a decision that he relocate to Scotland. They included professional opportunities, family commitments and like matters. However, the father specifically included the question of the time that he would be permitted to spend with the child were he to decide to relocate as being relevant to his decision.
My determination of the ultimate question referred to above with regard to the competing proposals of equal shared time as against the mother being permitted to relocate to Scotland with the child is in favour of the relocation. In my view, the decisive factors are the mother’s role as primary parent and the risk to the mother's psychological and emotional health of not being permitted to relocate with its probable consequences on her parenting of the child. That risk to the child is, in my view, too great to take.
I accordingly decide that I am not persuaded that it is in the child’s best interests to order that the mother and the father equally share time with him. However, no matter what the decision with regard to that matter, in my view it is not practicable for such an order to be made because it is in the child’s best interests that his mother should be able to relocate to Scotland with him.
Having determined that the mother's application to relocate with the child to live in Scotland is in the child’s best interests, there is a further question as to when such relocation should occur. The father proposed that it should not occur until June 2012. The mother, supported by the ICL, proposed 14 March 2011.
Dr L’s evidence that a departure in March 2011 would be in the child’s best interests while any time beyond that would create an increasing risk to the child because of the threat to the mother's psychological and emotional health is very persuasive. However, Mr S’s evidence satisfies me that the mother could cope with a short delay beyond that time if she had the certainty of being able to relocate. Such a further delay would have the advantage to the child of spending more time with his father, thereby enabling them to strengthen their bond.
Subject to my discussion below of the difficulties in the parties' proposals arising out of an inadequate understanding of school dates in Scotland, I accept the mother's evidence that she would be able to enrol the child in an appropriate school at the commencement of the Scottish school year in approximately August 2011. On the basis of the risk entailed in a departure much later than March 2011 and the commencement of the school year approximately 4 months later, while accepting the advantage to the child’s best interests of a further short delay, I have determined that it is in the child’s best interests to permit the mother to relocate with him to Scotland from 1 May 2011. That will allow a period of four months from the delivery of this judgement and the making of orders for the father to spend significant and substantial time with him and for a settling in period of several months before the child commences school.
I am satisfied that the mother will continue therapeutic counselling with Dr L to assist her in coping with this delay.

Substantial and significant time and practicability

The parties having agreed to sharing parental responsibility for the child and my having determined that the parties should not have equal shared time with him and that the mother should be permitted to relocate to Scotland, I am required by s65DAA(2) of the Act to consider whether the father should be permitted to spend substantial and significant time with the child. As with equal shared time, that question is to be determined on the two limbs of the child’s best interests and the practicability of making the order.
Substantial and significant time is defined as “days that fall on weekends and holidays” and “days that do not fall on weekends or holidays”. Those times must enable the father “… to be involved in the child’s daily routine; and occasions and events that are of particular significance to …” the child. Likewise, “the time [which the child] spends with [the father] allows [the child] to be involved in occasions and events that are of special significance to [the father].”
With regard to the child’s best interests, I must consider the same factors as in my consideration of equal shared time above. Likewise, the question of practicability must be decided in accordance with the same factors as considered above. In those regards, I adopt my discussion and findings and do not add anything to them.
The proposals of both parties, supported by the ICL, affirm the proposition that it would be in the child’s best interests to spend substantial and significant time with the father. However, the determination of whether such an order should be made turns on whether the father relocates to Scotland to live in close proximity to the mother and the child. If he does decide to relocate, the proposals by all three parties, while significantly different as between the mother and the ICL on the one hand and the father on the other, support the concept of substantial and significant time. If he does not relocate substantial and significant time will be impracticable. Fortunately, all parties have put proposals in the alternative which effectively gives the father the choice of relocating or otherwise. He should consider himself fortunate that that approach has been taken as in the absence of a clear commitment by him to relocate, I may have found it difficult to make an order that he spend substantial and significant time with the child.

Conclusions

With respect to the parties' primary applications, I have concluded that it is in the child’s best interests that the mother be permitted to relocate with him to live at or close to her mother's residence in Scotland. Accordingly, the father's application to spend equal time with the child will be dismissed, significantly because it is impracticable in accordance with the above discussion but also because, on the basis of all of the evidence, I do not regard it as being presently in the child’s best interests.
The proposals of the mother and the ICL with regard to the father spending time and communicating with the child prior to the relocation which I have determined are essentially the same, save that the ICL has proposed an additional day in each fortnightly cycle. Those proposals amount to substantial and significant time in accordance with the meaning of that term in the legislation as discussed above.
I will order in accordance with the ICL’s proposal, subject to necessary adjustments to take account of the date of making these orders and their consequent commencement. I also note the father's proposal that I order that he spend a period of two weeks with the child prior to the relocation. I have determined not to make that order because, in my view, shorter and more regular periods of time will be more in the child’s interests than is that proposal. I have also preferred the mother’s and the ICL's proposal for 14 days notice rather than 120 days as sought by the father. I anticipate that the mother will leave Australia for Scotland no later than very shortly after she is permitted to do so pursuant to the orders.
I note the mother’s application for maintenance for rent in the event that she becomes unemployed prior to the anticipated relocation. Such an order must await an application based on an alleged need at the time.
As I have found above, all parties have put proposals for the father to spend time and communicate with the child in the alternative circumstances of the father relocating to Scotland and deciding to remain living in Melbourne. However, as I have subsequently discovered, all of those proposals are based on incorrect facts. Because I was troubled by the nature of school holidays in Scotland, I took the liberty of researching the issue and have discovered that while the parties have assumed that there are four term holidays in each year, there are actually only three such holidays. Each of the three terms appears to include a short period of the nature of a long weekend or little more at the midpoint.
Having taken the unorthodox step of performing my own research and discovering matters on which the parties have not had the opportunity of calling further evidence and making submissions, as a matter of natural justice it is essential that I now refer the applications back into Court for the consideration of the calling of such evidence and making submissions on the issue of the time and communication which the father is to have with the child following the relocation to Scotland. I will provide Counsel with the results of the research which I have undertaken and invite further consideration of these matters by way of relisting.
Accordingly, the orders which I will make as set out at the commencement of these reasons for judgement determine all matters up to the time at which the mother is authorised to relocate to Scotland with the child. Following the relisting as indicated in the previous paragraph I will make all necessary further orders including an order for the discharge of the watch list order as previously agreed between the parties.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:

Date: 24 December 2010

[2010] FamCA 1191

24 December 2010

Key Legal Topics

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Family Law

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Jurisdiction

Procedural Fairness