Mahoney and Jenkin
[2017] FCCA 24
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHONEY & JENKIN | [2017] FCCA 24 |
| Catchwords: FAMILY LAW – Parenting dispute about 6 year old child – mother re-marrying and wishing to relocate to New Zealand – father strongly opposing relocation – father concerned he will be frozen out of child’s life in the event of relocation – parties in agreement if mother not permitted to relocate – father’s fears of loss of relationship with child found to be erroneous – consideration of relevant matters leading to clear conclusion that relocation should be permitted. |
| Legislation: Family Law Act 1975, ss.60CC, 65DAA |
| Goode v Goode [2006] FamCA 1346 MRR v GR [2009] FamCAFC 81 |
| Applicant: | MR MAHONEY |
| Respondent: | MS JENKIN |
| File Number: | DGC 2089 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 12 and 13 December 2016 |
| Date of Last Submission: | 13 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mellas |
| Solicitors for the Applicant: | Jh Legal Pty Ltd |
| Counsel for the Respondent: | Mr Mort |
| Solicitors for the Respondent: | Forte Family Lawyers |
ORDERS
That the mother and father have equal shared parental responsibility for the child X born (omitted) 2010 (“X”).
That X live with the Mother.
That the mother be permitted to permanently relocate X’s place of residence to New Zealand not earlier than 14 January 2017 (“the relocation date”).
That within 30 days, the Father do all things necessary and submit an application to the New Zealand Minister of Immigration for a Special Direction to enter New Zealand pursuant to section 17 of the New Zealand Immigration Act 2009 and also apply for a substantive Visa to enter New Zealand (such as a tourist Visa).
That within 60 days of each occasion the Father plans to travel to re-enter New Zealand, he do all things necessary and submit an application to apply to the New Zealand Minister of Immigration for a Special Direction to re-enter New Zealand pursuant to section 17 of the New Zealand Immigration Act 2009 and also apply for a substantive Visa to enter New Zealand (such as a tourist Visa).
In the event that the Father is unsuccessful in being granted a Special Direction to enter or re-enter New Zealand, he reapply within six months of his parole period ending.
Following the relocation date, the Father spend time with X as follows:-
“Option A” – The father is immediately able to enter New Zealand
(a)In the event that the Father is granted a Visa to enter New Zealand, he spend time with X as follows:-
(i)For half of all New Zealand short term school holiday periods at times to be agreed between the parties, and failing agreement as follows:
1. For the first half in all even numbered years, being from the day after the last day of school term until 5.00pm on the middle day of the holidays (and if the holidays are an odd numbered of days, the later of the two); and
2. For the second half in all odd numbered years, being from 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two) until the day before the commencement of the new school terms
(ii)For the purpose of paragraph 7(a)(i)(1) and 7(a)(i)(2) herein, the Father’s time with X be spent in New Zealand for the terms 1 and 3 school term holidays and in Australia for the term 2 school holidays (subject to airline availability).
(iii)For each alternate fortnight in Australia during the New Zealand long summer school holiday period at times to be agreed between the parties, and failing agreement, subject to paragraph 7(b) herein, as follows:
1. First Fortnight Period
a.In Australia from 27 December 2017 (subject to airline availability) and in each odd numbered year thereafter;
b.In Australia from 24 December 2018 (subject to airline availability) and in each even numbered year thereafter.
2. Second Fortnight Period
a.In New Zealand from 21 January until the commencement of the new school year.
(iv)Once X attains the age of 12 (in June 2022), paragraph 7(a)(iii) herein be varied to provide that the Father spends time with X in Australia for one half of all the New Zealand long summer school holiday periods as agreed between the parties and in the absence of agreement as follows:
1. For the first half of all New Zealand long summer school holiday periods which commence in even numbered years, being from the day following the last day of school (subject to airline availability) until 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two);
2. For the second half of all New Zealand long summer school holiday periods which commence in all odd numbered years, being from 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two) until 6.00pm three days before the commencement of the new school year.
(b)That paragraph 7(a)(iii) and 7(a)(iv) herein be suspended to allow X to spend time with the:
(i)Mother over Christmas from 24 December to 26 December in all odd numbered years; and
(ii)Father over Christmas from 24 December to 26 December in all even numbered years.
(c)The parties each pay half of X’s and the Mother’s return economy airfare to Australia for the purpose of X to spend time with the Father pursuant to paragraph 7(a) herein.
(d)The parties each pay half of the Father’s return economy airfare to New Zealand to spend time with X pursuant to paragraph 7(a) herein.
(e)In the event that an airfare/ticket has been purchased for X and/or the Mother to travel to Australia or for the Father to travel to New Zealand pursuant to paragraph 7(a) herein, and the Father subsequently cancels or changes the time he is to spend with X, then within 14 days the Father reimburse the Mother her half share of the cost of the airfare/ticket by way of direct deposit into her nominated bank account.
(f)On the occasions that X is to spend time with the Father in Australia as detailed in paragraph 7(a) herein, changeover is to occur at the Father’s place of residence.
(g)Subject to:
(i)The Father being able to travel to New Zealand;
(ii)The Father providing the Mother at least six weeks’ notice prior to the period of time requested and his intended travel; and
(iii)The Father paying the entirety of the costs of his airfare/ticket to New Zealand;
he shall be at liberty to spend time with X in New Zealand on the following additional days:
(iv)Two weekends a month (i.e from the conclusion of school on Friday until 6.00pm the following Sunday);
(v)Provided that (omitted) Day ((omitted)) results in a long weekend in New Zealand in that particular year, over the (omitted) Day long weekend (2 nights);
(vi)In the event that the Easter long weekend does not coincide with New Zealand school term holidays, every alternate year at Easter from Friday to Monday (3 nights);
(vii)Provided that ANZAC Day results in a long weekend in New Zealand in that particular year, over the ANZAC Day long weekend (2 nights);
(viii)Over the New Zealand Queen’s Birthday long weekend (early June) from Saturday to Monday (2 nights);
(ix)Over the New Zealand Labour Day long weekend (late October) from Saturday to Monday (2 nights);
(x)Over the (omitted) Anniversary Day long weekend (mid-(omitted)) from Friday to Sunday (2 nights).
(h)On the occasions that the Father is to spend time with X in New Zealand as detailed in paragraph 7(a) and 7(g) herein, changeover is to occur at the Mother’s place of residence.
(i)The Father shall communicate with X by telephone call, text message, email, Skype, FaceTime and by any other method agreed by the parties, as follows:
(i)At any reasonable time agreed by the parties;
(ii)At any reasonable time as requested by X, with the Mother to facilitate X engaging in such communication; and
(iii)On special occasions at a reasonable time agreed by the parties.
(j)That the Father facilitate all reasonable requests made by X to contact the Mother whilst she is in his care and that he endeavour to encourage and to make X available to speak to the Mother.
(k)That within 7 days of the Orders made by this Court, the parties shall do all things and sign all such documents necessary to enrol X at (omitted) School in (omitted) New Zealand to commence in the 2017 academic year.
(l)That the Mother shall do all things necessary and authorise (omitted) School to provide to the Father copies of all communications, notices, reports and forms issued by (omitted) School regarding X.
“Option B” – For the period the Father is unable to travel to New Zealand until he is granted a Visa
(m)In the event that the Father is not initially allowed to travel to New Zealand, for the period until he is granted a Visa, the Father spend time with X as follows:
(i)For half of all New Zealand short term school holiday periods at times agreed between the parties, and failing agreement as follows:
1. For the first half in all even numbered years, being from the day following the last day of school term until 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two); and
2. For the second half in all odd numbered years, being from 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two) until three days before the commencement of the new school terms.
(ii)For each alternative fortnight in Australia during the New Zealand long summer school holiday period at times to be agreed between the parties, and failing agreement, subject to paragraph 7(n) herein, as follows:
1. First Fortnight Period
a.From 27 December 2017 (subject to airline availability) and in each odd numbered year thereafter;
b.From 24 December 2018 (subject to airline availability) and in each even numbered year thereafter.
2. Second Fortnight Period
a.From 21 January until two days before the commencement of Term 1 of the new school year.
(iii)Once X attains the age of 12 (in June 2022), paragraph 7(m)(ii) herein be varied to provide that the Father spends time with X in Australia for one half of all New Zealand long summer school holiday periods as agreed between the parties and in the absence of agreement, subject to paragraph 7(n) herein, as follows:
1. For the first half of all New Zealand long summer school holiday periods which commence in even numbered years, being from the day following the last day of school (subject to airline availability) until 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two);
2. For the second half of all New Zealand long summer school holiday periods which commence in all odd numbered years, being from 5.00pm on the middle day of the holidays (and if the holidays are an odd number of days, the later of the two) until 6.00pm three days before the commencement of the new school year.
(n)That paragraph 7(m)(ii) and 7(m)(iii) herein be suspended to allow X to spend time with the:
(i)Mother over Christmas from 24 December to 26 December in all odd numbered years; and
(ii)Father over Christmas from 24 December to 26 December in all even numbered years.
(o)The parties on an alternating basis pay the entirety of the cost of X’s and the Mother’s return economy airfare to Australia, for the purpose of X spending time with the Father pursuant to paragraph 7(m) herein, with the Mother to pay on the first occasion.
(p)In the event that the Mother purchases an airfare/ticket for X and herself to travel to Australia pursuant to paragraph 7(m) herein, and the Father subsequently cancels or changes the time he is to spend with X, then within 14 days the Father reimburse the Mother the entirety of the cost of both X’s and the Mother’s airfares/tickets by way of direct deposit into her nominated bank account.
(q)On the occasions that X is to spend time with the Father in Australia as detailed in paragraph 7(m) herein, changeover is to occur at the Father’s place of residence.
(r)Subject to:
(i)The Father being in attendance at all times when X is in his care;
(ii)The Father providing the Mother at least six weeks’ notice prior to the period of time requested;
(iii)The Father paying the entirety of the costs of X’s and the Mother’s airfares/tickets to Australia; and
(iv)X returning to New Zealand the day before school recommences;
he shall be at liberty to spend time with X on the following additional periods per year:
(v)Provided that (omitted) Day ((omitted)) results in a long weekend in New Zealand in that particular year, over the (omitted) Day long weekend;
(vi)In the event that the Easter long weekend does not coincide with New Zealand school term holidays, every alternate year at Easter from Friday to Monday;
(vii)Provided that ANZAC Day results in a long weekend in New Zealand in that particular year, over the ANZAC Day long weekend;
(viii)Over the New Zealand Queen’s Birthday long weekend (early June) from Saturday to Monday;
(ix)Over the New Zealand Labour Day long weekend (late October) from Saturday to Monday;
(x)Over the (omitted) Anniversary Day long weekend (mid-(omitted)) from Friday to Sunday.
(s)The Father shall communicate with X by telephone call, text message, email, Skype, FaceTime and by any other method agreed by the parties, as follows:-
(i)At any reasonable time agreed by the parties;
(ii)At any reasonable time as requested by X, with the Mother to facilitate X engaging in such communication; and
(iii)On special occasions at a reasonable time agreed by the parties.
(t)That the Father facilitate all reasonable requests made by X to contact the Mother whilst she is in his care and that he endeavour to encourage and to make X available to speak to the Mother.
(u)That within 7 days of the Orders made by this Court, the parties shall do all things and sign all such documents necessary to enrol X at (omitted) School in (omitted) New Zealand to commence in the 2017 academic year.
(v)That the Mother shall do all things necessary and authorise (omitted) School to provide to the Father copies of all communications, notices, reports and forms issued by (omitted) School regarding X.
Each parent be at liberty to obtain, and shall authorise X’s school to provide to the other parent copies of all communications, notices, forms etc from X’s school.
Each parent shall be at liberty to attend all X’s school, social, sporting and extra-curricular events.
Each parent keep the other advised at all times of all health, education, social and sporting matters concerning X.
That if the Father is unable to care for X during the period when he is scheduled to spend time with her pursuant to these Orders, he give the Mother first option to care for X prior to him making alternative arrangements for X’s care.
That each of the parents ensure that the other parent is forthwith advised in writing of their current residential address and contact phone numbers, and that each parent forthwith notify the other parent in writing of any changes to these details as and when same occur.
The transcript of this proceeding is to be kept confidential to the parties save by order of this Court or of the Family Court.
IT IS NOTED that publication of this judgment under the pseudonym Mahoney & Jenkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2089 of 2014
| MR MAHONEY |
Applicant
And
| MS JENKIN |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of the child of the parties, X, born (omitted) 2010. Although there are a number of ancillary matters, the central overarching and vital dispute in the proceeding concerns the mother’s application to relocate to New Zealand with X and her husband-to-be, Mr R. The father’s opposition to this relocation is strongly felt and expressed. His primary concern, when ancillary matters are put to one side, is that the net effect of the relocation will be his excision from X’s life.
For the reasons that follow, I am of the clear view that X’s best interests will be met by permitting her to relocate to New Zealand with her mother. An appropriate spend-time regime involving extensive visits with her father (whether in New Zealand and/or Australia) will be put in place.
Agreed or Uncontroversial Matters
The father was born on (omitted) 1971 and the mother on (omitted) 1970. The parents met in 1995 (father’s version) or 1996 (mother’s version) and, on any view, cohabited thereafter. They married on (omitted) 2002 and, as noted, X was born on (omitted) 2010. They separated under one roof in June 2012 (father’s version) or October 2012 (mother’s version) under one roof, and final separation took place in May 2014.
Shortly thereafter, on 22 July 2014, the father was arrested and charged with offences related to a large quantity of marijuana. He pleaded guilty to cultivating a commercial quantity of cannabis, and on 30 January 2015 he was sentenced by Judge Montgomery to a term of imprisonment of two years and 16 months, with a minimum time to serve of 14 months. He was in fact released on 29 March 2016.
Prior to separation, the parties had lived on a property which was part of what, at least until recently, were very substantial land holdings owned by the father’s family, who have been on the land, so to speak, for generations. The mother had conducted a business in premises on this property. There is a dispute as to why the mother’s conduct of that business was interfered with by the father and his family, but on any view the mother formed the view, still I think held, that the father’s family had sought to disadvantage her significantly.
This view was strongly expressed in interviews with Dr J who produced a report in December 2014. Dr J was not required for cross-examination, and I note that when she saw the parties she formed a clear view that X had been coached by her mother to make remarks critical of her father.
On any view of the controversy between the mother and the father and/or his family about her business, her lease will expire in November 2017, and it would seem impossible for that business to continue thereafter.
The father has repartnered with Ms K, who has two children, A, born (omitted) 2007 and B, born (omitted) 2010. Ms K is presently involved in acrimonious proceedings with the father of those children in this court.
In March of 2015, the mother met Mr R, and by mid-2015 they regarded themselves as being in a committed relationship. X was introduced to Mr R in (omitted) 2015 and has since spent time not only with Mr R on a relatively considerable number of occasions but has also met his two children, C, born (omitted) 2005, and D, born (omitted) 2007, who live with Mr R near (omitted) in New Zealand on a week-about basis by agreement with their mother.
In late September 2014, the paternal grandmother was diagnosed with breast cancer and she died on (omitted) 2014. She had altered her will so that the estate was essentially left to the father’s sister, and this has given rise to substantial litigation which is still underway.
The Parties’ Affidavit Materials
Because of the way the case has run, it is not necessary to traverse the parties’ affidavit materials in great detail. Both parties filed trial affidavits, although the mother did ultimately rely upon two earlier affidavits filed. It is sufficient for present purposes to note that the mother set out in her first affidavit, filed 16 September 2014, considerable detail about the alleged interference with her business by the father’s family, matters which, as I have indicated, she expressed also to Dr J at about the same time. The affidavit also was replete with criticisms of the father’s parenting (or more accurately lack thereof) of X during the earliest two years of her life. The gravamen of the mother’s affidavit was that the father raised his game, so to speak, after separation in 2012, at which time X was, of course, two years old. I note, as is common cause, that during the father’s incarceration, the mother, assisted by others, including Ms K, took X every fourth weekend to spend three and a half hours with her father, a round trip of about 11 hours, and that X spoke to her father by telephone not less than two times a week during this period also.
I note that the second affidavit filed by the mother on 15 April 2016 gives considerable detail about the time that Mr R has spent both with the mother and with X. She also deposes to his not insignificant business interests in New Zealand. Because of the emphasis given to the matter during the running of the trial, it is appropriate to set out paragraphs 42 and 43 of that affidavit, which say:
I consider that the move to New Zealand will be a good one for X as she will have the opportunity to live in a close and loving family environment with me, Mr R and Mr R’s children. The occasions that we have spent together in the past year in Australia and New Zealand have been warm, joyful and loving.
Mr R is successful in business and a good provider. I understand that he earns between NZD$120,000 and NZD$180,000 per year. Mr R’s relatively better income will enable X and me to enjoy a more affluent lifestyle, with the education and benefits that brings.
I note that the mother has relevantly recently qualified as a (occupation omitted) and in her affidavit she expressed the intention to take up work in that capacity in New Zealand should she relocate.
In her trial affidavit, the mother noted that she had decided by July 2015 that she was in a committed relationship with Mr R. In paragraph 73 of the affidavit, she detailed matters which led her to believe that the father was inappropriately involving the child in the proceedings, matters not traversed in cross-examination.
The mother, in her affidavit, denied informing police of the father’s marijuana cultivation, although she asserted, without, once again, challenge in cross-examination, that she had been informed as early as 2012 on a hearsay basis that this might be the case. The matters earlier quoted from her previous affidavit are repeated in the following terms at paragraph 162 where the mother said:
The move to New Zealand to live with Mr R is in the best interests of X as it will provide her a warm family environment (consisting of me, Mr R, D and C) for her to grow up in. When X has spent time with Mr R, C and D, I have observed that X appeared to blossom and enjoy the time spent together as a family dynamic. I am unable to provide such a family dynamic to X in Australia.
The affidavit went on to note the likely difficulties that would occur were relocation not permitted, given that Mr R is not able to relocate to Australia. In my view, these matters are only commonsense.
At paragraph 171, the mother repeated the benefits of the greater income that would be available were she to live with Mr R in New Zealand.
The father’s trial affidavit concedes the mother’s travel to (omitted) while he was incarcerated there. He asserts at paragraph 16:
It was my biggest fear that during the period of my incarceration my relationship with X would suffer. I have tried really hard, to get it to the point where it is now, and couldn’t be happier with the relationship and bond we have. The thought of losing X or her being ostracised from me whilst I was incarcerated was my biggest fear.
The affidavit goes on to express an understandable concern about the apparent brevity of the relationship between the mother and Mr R, the likely disadvantages to the father’s relationship with X should relocation occur, including a change of school and yet further disruption in X’s young life in which there has already been so much disruption. She would also face a diminution in her relationship with members of both sides of her family, including maternal cousins with whom she has a good relationship. I note, however, that at paragraph 29 of the father’s trial affidavit he concedes that Ms K and the mother get along well and that while he was in jail the mother would even bring X to Ms K’s place for play dates and sleepovers with Ms K’s children.
The Affidavit of Ms C
Ms C is a migration law specialist well-qualified to give evidence about the migration law of both Australia and New Zealand. She was required for cross-examination but few questions were necessary. First I should note that it was absolutely apparent that she was fully expert in her field. Second, it is clear that the father’s criminal record will make it more difficult for him to go to New Zealand, if he is enabled to do so at all, for the next 10 years. He is able to apply for dispensation, but this will depend very much upon the way in which the relevant departmental officer in New Zealand feels about the matter. The good news is that if he gets one dispensation he is likely thereafter to obtain others fairly readily. Nonetheless, there is no certainty in this aspect of the matter and it is at least as likely as otherwise, as I find, having heard Ms C’s evidence, that the father may not be able to go to New Zealand for the foreseeable future.
The Affidavit of Ms K
This affidavit is, in my view, largely unremarkable. It sets out the unfortunate history of the disputation between Ms K and the father of her children, still, as I say, extant before this court. As I observed, however, during the running of the trial, everybody agrees that X should spend time with the father and Ms K, and that puts the extent of the matters in issue between Ms K and her former husband in proper context.
The affidavit of Mr R
This affidavit is, as might be expected, wholly supportive of the mother’s position. It attests, amongst other things, to a good relationship on his part with X, who started to call him “Daddy Mr R” without prompting in June 2016. It appears from the material in the affidavit that Mr R’s business interests are progressing extremely well. He pays himself a salary of $120,000 a year, but I note that he also has distributions which, in the last year, amounted to some $72,000. I note that he asserts, and he was not cross-examined about this, that his income is likely to increase significantly, and, given the history he describes in his affidavits, this would seem entirely likely.
The Family Report of Ms D
Ms D’s report dated 11 November 2016 is the most recent overview conducted independently of the family. Ms D noted the history of the matter and the fact that both parties agreed that X was spending time with Mr Mahoney in accordance with the extant interim orders, being alternate weekends from after school Friday until commencement of school Monday and every Wednesday overnight. They both reported some flexibility leading to additional time spent by X with her father. Ms D noted the positions of the parties and in particular the mother’s desire to relocate to New Zealand.
At paragraph 9, Ms D reported that the mother had attended and completed the Court‑ordered post‑separation parenting program, describing it as beneficial, but that the father had not. During the trial, I was informed that the father has now enrolled.
In the interview with the father, Ms D noted, inter alia, that despite the general success of the operation of the current orders, at paragraph 12:
Mr Mahoney stressed however that he did not trust Ms Jenkin describing her as ‘evil’, believing that she made the report to the police that resulted in his criminal charges and time in prison. Mr Mahoney stated that it is his belief that Ms Jenkin continues to ‘bag dad to X’ and that X ‘talks about going to New Zealand to live.’ He added that it is his belief that the maternal agreement to the current Interim Orders are ‘a strategy by Ms Jenkin so that she can say X has developed a relationship with me.’
The report noted Mr Mahoney’s understandable reservations about the mother relocating to New Zealand and his adamant opposition to such relocation. Ms D noted the father’s concern that X is known as Mahoney‑Jenkin at school, this not being the name on her birth certificate, and went on at paragraph 14 to say:
He stated that he believes there is ‘danger that the mother will stop time with me,’ adding ‘she is a scorned woman, there is hostility and animosity from her, it will break X’s heart if she goes to New Zealand.’
In her interview with the mother, Ms D noted her family background and the, now, relatively civil interaction between the parents when they meet. At paragraph 19, Ms D noted:
Ms Jenkin stressed various positive aspects involved in her relocation proposition. This included X being offered the opportunity to be part of a family, her partner committed to similar family values, an established and loving relationship involving her partner and a loving relationship established between X and her step-family. Ms Jenkin cited improvements in the area of parental communication and the establishment of the father‑daughter relationship. She described X as an emotionally resilient child, able to manage the relocation to New Zealand and attending a new school. Ms Jenkin stressed her commitment to maintaining and facilitating the paternal relationship, time and communication between father and daughter.
Ms D interviewed X. At paragraph 23, the report says:
X described limited communication between her parents, noting ‘they kind of say hello, mum says hi to dad, dad sort of says hi.’ X commented that it would be her preference to continue living in Melbourne, adding that she is aware that her mother would like to move to New Zealand. She added, ‘I don’t really want to live in New Zealand, it is really hard, I don’t know what to choose, I don’t really want to choose, I would feel sad for my dad, I think if I was in New Zealand, I would want to move back soon.’ She stated that she felt reluctant to express her thoughts to either parent, noting that her mother has cautioned her in this area, ‘don’t tell dad just in case.’ She described knowing her mother would like to live in New Zealand, adding, ‘here mum doesn’t have money.’ X commented that she would feel ‘very sad if I didn’t see dad, it wouldn’t be fair for him but it would be sad for mum if she stays here’.
Essentially, Ms D recorded entirely satisfactory and unremarkable interaction between X and each of her parents. She further noted that X was benefiting well from the extant spend‑time regime with her father and the likelihood (paragraph 30) that if the parties were to remain living where they were, the matter would resolve by agreement.
Relevantly for these purposes, Ms D recorded at paragraphs 33 - 35:
Mr Mahoney expressed a high level of distrust and dislike in respect to Ms Jenkin and her articulated proposals in relation to X s future. Mr Mahoney indicated clearly and adamantly that he was opposed to maternal relocation, fearful of losing his paternal relationship with X and Ms Jenkin being non‑compliant with court orders that may be made in this area. It is acknowledged that Mr Mahoney is enjoying the re‑establishment of time with X following his release from prison in March 2016. It is further acknowledged that Mr Mahoney will experience personal distress and a sense of loss should X live in New Zealand on a permanent basis.
X impresses as a delightful and bright little girl of six years. She openly expressed that she felt loved by her parents and members of the extended maternal and paternal families. She expressed an acceptance of having two set families, describing this as positive. X also expressed and acknowledged the established bond she has with her father and her mother. X also expressed an enjoyment of the current arrangements, able to spend regular and predictable time in paternal care.
However X also impresses as a child who has some awareness of individual parental views, preferences and difficulties in this area of communication. X appears to have some knowledge of her mother’s proposal to live in New Zealand, this involving changes in school, residence, and the way she spends time with her father. She is also aware of her father feeling sadness should this occur. X was able to comment that the choices were hard for her and that she did not want to choose between her parents. The views expressed by X are considered understandable given the circumstances and are acknowledged.
The report continued at paragraph 37:
Whilst acknowledging the various personal benefits to Ms Jenkin in relocation in order to establish a family life with her partner, it is considered that there are challenges that impact upon X. These include a major change in the way she spends time with her father; change of school and peer friendships; moving from familiar locations and adapting to relationships and family life involving Mr R and his extended family. It is further noted that based on professional advice obtained from Ms C, Immigration Lawyer, that initially, given Mr Mahoney’s criminal history, it may be difficult for him to obtain travel permission to travel to New Zealand in order to spend time with X.
The report went on to recommend equal shared parental responsibility and that X continue to live in the primary care of her mother. The report recommended:
That careful consideration be given to the identified issues and challenges in response to the maternal proposition to relocate to New Zealand. It is further considered that whilst there appear to be positive implications for the mother should she be able to relocate to New Zealand in order to further her commitment with her partner to establish a new family life, there is also the long‑term impact upon X in respect to her relationship with the father.
Unsurprisingly, the report recommended that if the mother remained in Victoria, the current arrangements continue and that if she were permitted to relocate, careful thought be given to exactly how the father would spend time with X.
The Evidence Given at Court
What follows does not purport to be a transcript. It is a record taken from my notes. It records those aspects of the oral evidence that I found significant.
The Evidence of the Mother
The mother adopted her trial affidavit as true and correct (counsel subsequently also adopted her two earlier affidavits without challenge).
Under cross‑examination, the mother was first asked about her current business, (business omitted), which she has been operating since 2012. Her lease is current until November 2017. She employs a manager and, in all, three to four staff. Last year, her income was $69,000, and this will continue until the end of her lease. The mother is a qualified (occupation omitted) and conducts (business omitted). She has conducted, thus far, (employment omitted). She has done approximately (business omitted) until now, having qualified in mid‑2016. She broke even on the last (omitted) and charges $130 per hour for (business omitted).
The mother has been to New Zealand three times this year and will be able to work in New Zealand and has, in fact, done so in one of her proposed husband’s businesses. Mr R will support her and X initially.
The mother conceded that X loves her school and is doing well there. She loves her friends there and her teacher. It has been a very positive experience for her.
The mother has visited X’s proposed school in New Zealand. She had been to school to pick up Mr R’s children and walked around. She had emailed the headmaster. It seemed a very reasonable school and has a child care program if it is needed. She had not asked about fees for child care as she would herself be available.
The mother confirmed X’s extracurricular activities of (hobbies omitted), the father being involved in the last of these matters. The mother said she had to ask the father three times before he eventually agreed. She had done this because she wanted to involve him in X’s life.
The mother and Mr R are going to marry on (omitted) 2016. They met in (omitted) 2015, and X was introduced to Mr R two months later. She was introduced to Mr R’s children a month after that. There is FaceTime every second or third day, and the boys (Mr R’s children) speak to X every second week. She first told the father about her desire to move to New Zealand in about July 2015. She has regarded herself as being in a committed relationship with Mr R from July 2015 onwards, and they decided then to move to New Zealand. She had to ask for a passport for September 2015, which meant that she had to talk to the father about Mr R. She said that she had been intimidated by the father for a long time, and although it was put to her that a number of the criticisms now made in her trial affidavit were not in her earlier affidavit material, she said that these matters have occurred. She conceded that there was no Intervention Order ever taken out against the father and no report to DHHS. The mother said she had not made the allegations up. She said “I can’t alter the history of the matter.” The mother said she had undertaken (business omitted), by which I undertook her to say in this context that she had moved on. She said she was encouraging the relationship with the father regardless of the history. She said she was marrying now. She is in love, and the parties wanted to show their commitment to one another. Their extended families will all be here, including Mr R’s mother from the (country omitted).
The mother conceded that she had visited New Zealand on various dates in this year. She said that Mr R will help with travel back to Australia. She said he has just got a great business which is booming. When challenged about the extent of her income, she said that of the $69,000 she made, $20,000 was spent on rent and a further $40,000 on legal costs.
When asked about Mr R, the mother said Mr R is a good dad who gets on well with his ex‑partner. She said she does too. It would be hard for him to relocate to Australia.
When cross‑examined about the father, the mother said he was important as a father. She said that her proposal would maintain the relationship with the father. She said she went to (omitted) to see him with X, which took three and a half hours. The mother gave the father credit. She said he had been good around the school. He was involved in parent‑teacher meetings. She said they share the activities. She readily conceded the father would lose these participations if she moved. She proposed that she would come more often to create long weekends. She said that being a single mother was more difficult. It would be better with Mr R and the family.
When challenged about her circumstances, the mother said she rents in Australia, and there are business problems because of the forthcoming loss of the lease. She conceded that financial stability, of course, was important.
The mother said the father was not much involved with X in early years but was not saying that he was not involved at all. She was certain that the matters in her affidavit were correct. She had no concerns about the child in the father’s care. The father took the child to (hobby omitted) lessons and became more involved after she was three. He was attentive to the child when she was ill. Nonetheless, he had not returned to hospital from Queensland until the fourth day, and she said it felt like this had taken 10 years off her life. I should interpolate at this point and say that despite her denials, it is clear that the mother is still vividly irritated with the father for his conduct at that time. She said that she would have expected the father to want to be there immediately if X was seriously ill. She said that X loves the father, being a real dad. Nonetheless, she had always been the primary carer.
The mother was then cross‑examined about difficulties with the loss of the (omitted) car and the problems caused with her business. She said the father was causing problems and making life difficult for her. She had been told by a staff member that the father was growing marijuana in 2012 and thought she had noticed the smell of marijuana on his clothes at that time. She was suspicious and confronted him, but he said this was just oil, and she did not disbelieve him. Eventually, she asked him outright, and he said no. It was put to the mother directly that she had informed the police that the father was growing marijuana, and the mother conceded that she was aware that he believed this. She emphatically denied, however, being the person who did so. I should say in passing that this answer was given with conviction and was clearly true.
The mother was then cross‑examined about more recent times spent by the child with her father. She said he was a good father, doing a good job. He said he was fun and was involving her with his renovations. He takes her out for breakfast and taught her how to ride a bike. She said this was terrific. She said he participated and was good with school parties and good at the school.
When taxed with Dr J’s report and Dr J’s criticism of the mother discussing matters with X, the mother readily conceded that this was so. She said she was ordered not to discuss matters with the child. She had kept discussion about New Zealand to a minimum level, but X was a smart girl.
When cross‑examined about the father’s attitude to being a farmer, the mother was clear that while he enjoyed the social prestige of being a landowner, he detested the actual work.
The mother said she had learnt from the family report and had become proactive. She took X to Ms K to get to know Ms K’s children. She said that X is six years old and may say stuff in both houses that the parents wish to hear. When asked about the views expressed to Ms D by X about not wanting to go to New Zealand, how cold it was there, the mother’s answer lacked insight. She attributed this to the fact that the child had been with the father the previous weekend and inferred that this was the reason for the expression of these views. The mother’s answers to questions about coaching X were, in my view, somewhat defensive, but I accept that she has told X not to worry about New Zealand.
The mother confirmed that X calls Mr R “Daddy Mr R” and appears to have done this from an early point. She calls Ms K (Ms K) “Mummy” also. The mother said that she will not freeze the father out. She conceded that moving to New Zealand would be difficult for the child. She agreed that X had had a lot of changes. They had had to leave the family home. Her father went to jail. She had to go to new homes and a new school. She said X had coped with all of it, and the mother was confident that X would continue to cope. She said she could handle the change.
It was put to her that she had conducted an improper conversation about property issues with the father in X’s presence. She denied this and said the contact with the father was businesslike. She said that X had not heard the conversation. She conceded it was inappropriate to raise property issues in the presence of the child, but she not been in earshot.
The mother said that New Zealand school holidays are sufficiently closely aligned with Australian ones for the holiday time she was proposing to work. She said that she and Mr R would be in Australia for the long summer holidays in any event. She proposed that all travel costs should be shared equally. She would discuss (omitted) School (the school in (omitted)) with the father.
When it was put to her that the father’s parole will not finish until 27 July 2017 and he can, therefore, not travel until at least that time, the mother said that X could come to Australia. X travels very easily. It would be possible to come on a Thursday and head back on a Monday. She said that she would make a car available for the father in New Zealand and would pay all travel if necessary. She said she trusts the father with X now. She went on to say that she was not going through all this if she was going to renege. She was prepared to put up security of $10,000 if necessary. If she was to stay in Victoria, relocation not being permitted, time should stay as it is. She would be flexible with requests.
In re‑examination, the mother confirmed that it is a long day of travel to get from (omitted) to Australia. Nonetheless, (omitted) involved travel from 8 am till 7 pm, a not dissimilar period of time.
The Evidence of Mr R
Mr R adopted his affidavit as true and correct. Under cross‑examination about his business activities, it emerged that he employs 45 employees and has flexible hours, having his own children as to 50 per cent of the time. He adapts his working hours when the children are with him for the week. He conceded that his income of $120,000 a year is about $80,000 after tax and that he does not pay child support for his children. He asserted that he had about $500 per week left over after his expenses, although these were not the figures in his affidavit. He said he had allowed for his multiple visits to Australia in the figures in his affidavit.
He said that the mother had seen six clients in New Zealand, the last in October 2016, one of his employees. He said (business omitted) is already set up, and the mother may be busy. He said he could be very flexible with his work, and so could she. He has met X 12 times in person and sees her by FaceTime weekly. She calls him “Daddy Mr R,” and he likes this. She is the daughter he wishes he had had. He said he did not wish to leave New Zealand because of his own children. He had discussed moving to Australia with his ex‑wife, but she was opposed. His health and safety qualification is not valid in Australia, and this is a further inhibitor. He has thought about reducing his hours if X is living with him. He owns his own home through a trust and presently has about $7000 - $8000 dollars in the bank. He has discussed having more children with the mother after they marry. He is aware that X may stay in Victoria. He and his partner have been discussing marriage since earlier in the year, and he decided in late July. He finally asked her to marry him on (omitted). He is aware that the mother may have to stay in Australia, and this would be a terrible prospect. They would have to continue on the same basis as at the moment. He has not spoken directly to X about New Zealand because the matter is before the Court. He was content for the child to be known as Mahoney‑Jenkin and not by his own surname. He conceded that X talks about her friends in (omitted) and loves her teacher and school. She is doing really well in school.
The Evidence of Ms C
Ms C adopted her affidavit as true and correct. The gravamen of her evidence is shortly put. She confirmed under cross‑examination that the father faces potentially very significant difficulties in applying to go to New Zealand. He would need what is called a special direction. This may be granted on humanitarian grounds, and this is a very discretionary consideration. An application would take two to four weeks to process, or possibly longer. There is no cost involved in a special direction. After the special direction is received, it takes about five days to get a visa, and he would need to apply for each visit, but after the first visit, if he were successful, he would likely to be successful again. It would be open to him to reapply if he was unsuccessful.
The Evidence of the Father
The father adopted his trial affidavit as true and correct.
Under cross‑examination, the father confirmed that X was about two at the time of separation under the same roof, and time was then by agreement. He had taken her (hobby omitted). Separation under the same roof finished on 17 May 2014, when X was four. Time continued thereafter in shorter tranches till late June 2014. The mother was then made aware of criminal charges and stopped time for a couple of weeks. He was in prison for 14 months, and under the orders that were agreed, he saw X every four weeks for three and a half hours and by telephone time twice per week. He conceded that it was a long day to (omitted) and back. He was released in March 2016. He now sees X on a 5/14 routine by Court order. The mother has offered additional time, but this has gone both ways. He is involved with X’s school. The mother had got him a ticket for the school concert. He was concerned that his relationship with X would suffer while he was in jail, but this did not happen. It remained good. He said he thought he would be frozen out if the mother goes to New Zealand. He conceded that the mother complied with orders while he was in jail, but once she goes to New Zealand, there will be no consequences. He did not know if orders would be complied with in New Zealand. He had a real fear if the mother went to New Zealand. The mother had been very good about more time since he was released. He said, however, what is being done is done on a strategy basis from day one since the child was born. I would interpolate and say that this remark, consistent with what the father told Ms D, suggests a very dark view of the mother.
He has bought the family farms back and turned things around. His case in the Supreme Court is finalised. He bought the company back for $4.6 million, which is the value of the land. One of the four family properties has been lost, but the other three are subject to ongoing litigation. He is confident of keeping at least two of the properties but may lose the third. It is apparent from what the father has said that he has spent a lot of money in legal proceedings, but the renovations to his property have been economically undertaken. Some of his property is rented, and the rentals should cover the interest on his borrowings. He has, it is clear, millions of dollars of debts, which are covered by the moneys he has borrowed. He is not paying child support, and it seems improbable that he will. Nonetheless, he said if the mother asked for money, he would give it to her.
The father was cross‑examined about the (omitted) car, but I should say shortly that I accept his evidence about this matter. Although the father’s answers about the interference in the mother’s business were inherently credible, it is clear that these actions were designed to discomfit her.
The father is living with Ms K at (omitted). Ms K has smacked her children with a wooden spoon but not washed their mouths out with soap and water. Allegations to this effect are not true. He had seen Ms K smack a child once, but there were no issues with Ms K coping with the children. Ms K has not been charged by police. He had not told the mother about the recent incident between Ms K and her former partner. The incidents were fabricated by the former partner.
The father was cross‑examined about his criminal charges and said that they were downgraded from large commercial quantity to commercial quantity. He is trying to establish his business but has not spent a lot yet because it is part of a property still subject to litigation.
In re‑examination, the father was asked about his remarks about the mother’s strategy. He said Dr J had said that the mother was a strategist. He said the mother would not continue to facilitate his time. When questioned by the Court, he confirmed his view that the mother’s cooperative approach to his having time with X was all part of a strategy but did not represent her true state of mind.
The Evidence of Ms K
Ms K adopted her affidavit as true and correct. Under cross‑examination, she confirmed that the father does not financially support her, although she is not paying rent (her own home is rented out). She confirmed the recent issues with her former partner and denied misconduct. She conceded that she has smacked her children. She has threatened them with a spoon and to wash their mouths out but has not done so and does not scream at them. She said that her son B can be challenging, but there is no diagnosis yet as to any particular disorder, although this has been discussed. She is concerned about her former partner’s mental health. She conceded that X might have seen her smack her own children, but said that this would never be necessary for X. She was prepared to submit to an order that she not physically discipline X while in her care and said that an order to the same effect was now in place by agreement in respect of her own children.
The Evidence of Ms D
Under cross‑examination by counsel for the mother, Ms D confirmed that she understood the issue about New Zealand. The father was fearful of non‑compliance by the mother with orders. This was a fear of the father’s. She said that X had coped with a lot, including separation when she was two and the father being in jail. It was a complicated matter. There were advantages for the mother in New Zealand, but the father was not in agreement. The relationship with X had been positively re‑established. Necessarily, the child would feel a measure of grief if that relationship did not continue.
Under cross‑examination by counsel for the father, Ms D confirmed that she had read Dr J’s report and noted that X had been coached. Ms D said that Dr J’s report was two years ago, and issues had changed since then. In her interview, the mother had made comments and had given careful consideration to the issues raised by Dr J. She had undertaken a parenting post‑separation course. Ms D thought that the mother had thought through her proposals about X. She had raised financial issues with Ms D. X was very aware of the thoughts and feelings of both parents. Ms D did not know that X calls Mr R “Daddy Mr R.” It would be better were this not the case. It was possible, though, that she was simply following the other children in the household. Ms D was aware of the hyphenated name, and X was capable of understanding about both her parents’ names. When it was put to her that there had been a lot of disruption in X’s life, involving seven houses, two schools and the separation of her parents, amongst other things, Ms D conceded that X had been through a lot. When it was put that there would be further disruption if she relocated to New Zealand, Ms D said there would be different kinds of arrangements to adjust to. She would miss the current arrangements with her father. Her views were understandable for a child of six years who had an established and important relationship with her father.
A Paraphrase of Counsel’s Submissions – The Father
Counsel for the father submitted that while the mother and Mr R were in love, their proposals involved a risk to the relationship of X with her father. The mother did not initially tell the father of this relationship. She trusts X in his care. X was introduced to Mr R very early on. She started calling him “Daddy Mr R.” The mother desires financial security and a financial unit. Counsel made an oral application to prevent the use of the hyphenated surname. Given the history of conflict, the father fears non‑compliance by the mother, and it was submitted that the mother would remain uncompromising whether X coped with the move to New Zealand or not. It was submitted that the evidence did not suggest that Mr R and the mother, on the one hand, or the father, on the other hand, would have anything like the necessary funds available to permit the proposed travel to Australia or New Zealand as the case might be. It was submitted as an alternative that in some years’ time, it might be possible to revisit these issues. It was submitted that the father will never be a day‑to‑day dad if relocation occurs.
Submissions – Counsel for the Mother
Counsel confirmed that the law as set out in pages 1 to 9 of counsel for the father’s written submissions was agreed. He said that the mother had encouraged time between X and the father since separation, including the prison visits which went well. The mother takes proper steps to encourage the father to be involved in the child’s life, and this is not a strategy because it started before Mr R came on the scene. The report of Dr J is historical, and the relationship between the mother and father is now businesslike. The mother’s proposals are detailed. The child is only six years old but has handled the lots of adjustments she has had to deal with well. The mother was the primary carer, and it was in the child’s best interests to relocate with the mother.
Some Observations about the Credit of the Parties
I should say by way of introduction that, in the main, I thought that all the witnesses, including, perhaps most particularly for these purposes, the four parents, were generally good and clearly generally truthful witnesses.
The mother was, from the inception of her evidence, despite a palpable initial nervousness, a good witness. She answered the questions put to her directly and in a fashion that I found credible. She gave the father credit where appropriate without hesitation and was prepared to concede readily matters that she might have been expected to regard as against her interests, such as her candid concession that financial stability is important. As I have indicated, she was not able wholly to conceal an ongoing irritation with the father’s (and his family’s) endeavours to disrupt her business, an irritation I find understandable in the circumstances. As I have indicated, she is not the person who dobbed the father in for his drug production. While the mother’s answer about X’s views about New Zealand lacked insight, in circumstances where there is an ongoing measure of distrust between the parties, it is scarcely surprising. Her eagerness to promote the relationship with Mr R, while understandable in the first throes of romantic enthusiasm, does give rise to some subsisting question mark as to the extent to which she is really keen to foment the relationship between X and her father, and it is inappropriate that she should have moved so quickly to allow the child to call him “Daddy Mr R.” The mother was, however, taken in sum, an excellent witness who was clearly telling the truth.
Mr R was slightly defensive. His demeanour was palpably uncomfortable at times, but it is perhaps sufficient to say that I think he was telling the truth, although his position was clearly somewhat partisan in support of the woman whom he is about to marry.
The father was an exceptionally composed witness. His answers were, in the main, responsive and direct. The aspect of his evidence I found most concerning was his assertion that the mother has always been a strategist and the clear intimation that he regards all of the mother’s laudable endeavours to support his relationship with X of more recent times as being, in effect, a sham. His distrust and dislike of the mother has been recorded by Ms D, and, in my view, accurately. His dislike, springing as it does from his firm belief that the mother caused him to be jailed, is obviously deep‑seated and unlikely ever to dissipate.
Ms K was a composed witness who gave responsive and direct answers to the questions put. I found her evidence entirely believable, save that, of course, I approach her description of her recent difficulties with her ex‑partner bearing in mind that I have not seen or heard that person give evidence.
The credit of Ms C and Ms D is not in issue.
Findings about the Facts
I have already set out earlier in this judgment a substantial number of agreed matters. The fact is that the parties separated under one roof when X was two, in 2012, and were together until final separation under one roof in May 2014. The mother was evicted from the family home by the father and/or his family and has had a difficult time of it, as one would expect, thereafter. This caused the mother considerable bitterness as would only be expected. Whether the father’s conduct towards the mother was as bad, manipulative, controlling as the mother has put it in her most recent affidavit is open to question – but, as I find, despite some residual resentment, the mother has, indeed, moved on. Her evidence about completing this post‑separation parenting course and the benefits it has given her by way of increased insight was impressive. I do not think that her endeavours to foment the relationship between the father and X are an elaborate sham (a strategy) developed to enable her to get to New Zealand and then renege upon all the good work she has done. Taking the child to (omitted) was a significant matter. It involved very long and, from the mother’s point of view, personally unproductive days. This all took place long before Mr R came on the scene. I roundly reject the assertion that the mother is simply an actress going through the motions with the intention of reneging altogether when she reaches New Zealand.
I have devoted some time to this issue as it is the central core issue, as I find, between the parties. The father continues bitterly to mistrust the mother, and his opposition to her going to New Zealand, while, of course, perfectly understandable in itself, is given its real edge by his fear that the mother will freeze him out of the child’s life if she goes. In truth, this stands, as I find, at the core of his difficulties with the relocation. It is, however, not validly founded.
The Statutory Pathway
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) 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.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
The parties both agree with the legal approach set out in the Applicant’s written submissions. These submissions do not however, in my view, alter the continuing applicability, despite some statutory amendments since, of what the Full Court said in Goode & Goode set out above. Rather the written submissions are wholly consistent with Goode & Goode and the assistance provided by the observations of the High Court in MRR v GR [2009] FamCAFC 81 (“MRR v GR”).
Equal Shared Parental Responsibility
Both parties seek that there be equal shared parental responsibility and given their joint involvement in X’s life it is entirely appropriate that there be an order to this effect
Equal Time
No party is presently seeking equal time and the reporter Ms D does not recommend it even if the mother stays in Victoria. While I note of course, with respect, the decision of the High Court in MRR v GR, it is appropriate in the particular circumstances of this case to consider the matters in s.60CC directly as they will canvas the matters raised by s.65DAA in any event.
Substantial and Significant Time
This is will necessary depend to an extent on the relocation application. In the event that the mother remains in Victoria, the time will be substantial and significant time. It is clearly implicit in this fact that the parties believe that such orders are appropriate, practicable and not otherwise adversely affected by the relevant criteria. Equally obviously, substantial and significant time will be all but impossible (although arguably not entirely so) depending upon how the New Zealand based regime actually plays out in the event that it is put in place. It is now appropriate to proceed to the matters raised by s.60CC.
The Primary Considerations – Section 60CC(2)
Everyone agrees that it is in X's best interest to have a meaningful relationship with each of her parents. Although the mother has in recent affidavit material sought to raise matters which might engage with section 60CC(2A), it is sufficient to say that her own proposals are such that these do not stand at the forefront of the court's considerations.
The ongoing bitterness that each of these parents has about the other (in the mother's case her perceptions of the father's treatment of her at or about the time of separation and the difficulties in her business and in that of the father, the criminal information and resulting jail term) are simply not such that there is any expressed view by either parent that the child is at risk in the care of the other. I entirely agree with that perception. Both these parents love the child and there is no need to protect her from family violence, even within the extended definition in s 4A of the Family Law Act 1975, or from abuse or neglect giving rise to physical or psychological harm.
The Additional Considerations – Section 60CC(3)(a)
As I find, X has expressed views about New Zealand. She has said she does not want to go. It is cold. The latter remark is clearly correct, particularly as far south as (omitted). These views were not more probably than otherwise coached by the father in the weekend before the family report. While it is clear that both parents have to an extent, whether wittingly or otherwise, exposed X to adult issues, including the relocation to New Zealand, there is no reason to suppose that X did not mean what she said to Ms D. Nonetheless, as Ms D rightly said, these are the views of a six year old child.
The fact is that she loves her father and loves the time she spends with him at the farm and elsewhere. It is entirely understandable that she finds the possible move to New Zealand confronting. She knows how far away it is. Everyone agrees that she is a highly intelligent child. It is more probable than otherwise that she has an insight as to what this will do to her relationship with her father. Nonetheless she has also made it clear that she feels for her mother and that she does not want to choose. The court is not going to let her do so. It is a matter for the court. Her views are noted but are not, in the circumstances of her age and the circumstances in which her views have been expressed, a matter that can in any way be described as decisive.
Section 60CC(3)(b)
X has always lived with her mother, who has been and remains her primary attachment. Not only was this the case following separation, but it necessarily became more so while the father was incarcerated for over a year. Inevitably she must have a stronger relationship with her mother than with anyone else. Notwithstanding this, she has always maintained a relationship with her father, even when he was in jail. It is a measure of the lack of the father's insight that he fails to give the mother the proper credit for this and rather ascribes it to being part of a strategy designed to defeat his interests in the longer term.
X clearly has an excellent and loving relationship with her father to whom she is dearly attached. The child appears also to have a very good relationship with Mr R, whom she calls Daddy Mr R. She clearly took to him well, because she adopted this nickname very early on. Likewise she appears to have an excellent relationship with Ms K. Having seen both Mr R and Ms K give evidence, I find this wholly unsurprising. They each struck me as being thoroughly decent people. Although it is not a matter of great emphasis, X obviously has a very good relationship with her extended paternal and maternal families, including cousins in Melbourne (the children of the mother's brother) whom she calls the cousies. She also seems to get on well with Mr R’s children.
Section 60CC(3)(c)
I accept that the father was less engaged with the child until separation under one roof in 2012. He was working long hours to support the family. He may indeed have been perhaps less committed to X than he has subsequently become. It would be only natural that separation would jolt him into a realisation as to this. Nonetheless the father has thereafter taken every step to engage with X until he was incarcerated.
The father's evidence about his criminal activities has always tended to seek to understate it. It seems clear there were rumours of his activities as early as 2012, and his assertion that he was dealt with more leniently by the court when it was found that his criminal activity was only of short moment sits uneasily with the heaviness of the sentence (particularly when bracketed with the father's perception of the likely outcome of his case as recorded to Dr J).
In saying this, there is no question self-evidently of punishing the father twice for his criminal conduct, but his willingness to engage in such conduct stands against him. He says he undertook marijuana growth because of financial stress, and that may very well be so, but the fact is that in doing so he adopted a course of action which led to his being jailed for a year, and this was not, on any view of the matter, a proper form of conduct and one that has caused some bifurcation of his relationship with his child.
Having said this, it must be emphasised that this is a matter in the ultimate at the margins. The father misconducted himself and has paid the price. His relationship with his child did not cease while he was in jail, contrary to his fears, not least because the mother took every proper effort to make sure that this did not occur. The relationship has been completely re-established since his release.
The father has otherwise properly sought to participate in decisions about X to spend time with and communicate with her.
No one has suggested even for a moment that the mother has not done everything that a mother should for X.
Section 60CC(3)(ca)
In a sense this matter has already been dealt with immediately above. The father has failed to fulfil his obligations while he has been incarcerated. This was necessarily the case. He pays nothing by way of child support. A man who can borrow millions of dollars and service that debt might perhaps be thought to be more capable of providing financial assistance than the father apparently feels that he is able to.
Section 60CC(3)(d)
There is no question that if X goes to New Zealand it will be a massive upheaval for her. There is bound to be a grieving process. There are, however, a number of qualifications to the issue. The first is that she will be in the primary care of her mother who has always been her primary carer. She will be living with another father figure whom she likes and two other children of not significantly dissimilar age whom she also likes.
She appears to be a child well able to adapt to change. Counsel for the father sought to put it that, as it were, there should be no further change because of the multiplicity of changes that X has had to confront. As I find, the material suggests that X is an extremely resilient child who will be well able to cope with change provided that she is otherwise secure. While undoubtedly X will be sad for a while and to a degree if she goes to live in New Zealand, because she is well aware that she will not see her father as much, and indeed will not do so on the same regular basis, I do not think that the move to New Zealand will be of itself significantly detrimental in this regard to X’s best interests.
The person who will, of course, be very vividly affected by this change is the father. It will be deeply worrying and threatening to him. Nonetheless, as I find, the mother will comply with the orders that she has herself proposed. What I would expect to happen is that once it becomes apparent to the father that, contrary to his fears now (and fears when he was incarcerated) the mother will foment the relationship with X and will make significant efforts to do so, the father's anxiety and anguish will necessarily diminish.
Section 60CC(3)(e)
There is a measure of practical difficulty in the orders the mother proposes upon relocation to New Zealand. The time it takes to get from (omitted) to where the father is living will be at least a full day's worth of travel. That is not a minor matter. There are also significant practical difficulties related with the expense of the travel that is proposed. As I find, however, the mother and Mr R will indeed fund the time for which they contend.
Although Mr R's nominal income is $120,000, he has deposed to receiving additional distributions through his business of some $70,000 in the last year. He was not challenged as to this in cross‑examination. Given the scope and scale of his business, it makes sense. As I find, having heard Mr R's evidence of his business expansion, it is more probable than otherwise that his income will significantly increase. I think that both he and the mother mean what they say about bringing X to see her father, or alternatively making her available in New Zealand.
Furthermore, the father adores his daughter. He will make arrangements to structure his affairs so that he can afford to go and see his daughter. As I have said, a man who can service a debt in millions of dollars should reasonably be expected to be able to find the funds to travel to see a child who is the light of his life, or, as the case may be, to have her travel to see him.
Obviously while X is in New Zealand her relationship with Ms K's children and with her family members in Australia will be interrupted, and this is plainly a matter to be considered. It is to be noted that the mother herself fomented this relationship and this stands to her credit.
In the ultimate, I do not think that the practical difficulty and/or the expenses involved of X spending time with her father and communicating with him will substantially affect X's right to maintain personal relationship with him on a regular basis. The time proposed by the mother, in my view, meets the requirements of the law.
Section 60CC(3)(f)
This matter can be dealt with shortly. I have already said that the mother has done everything a mother should. Further, there is no reason to doubt, taking the evidence as a whole, that both the father and each of the partners of the father and the mother will properly be able to provide for X's needs, including her emotional and intellectual needs.
Section 60CC(3)(g)
I have already commented on X's age. Although obviously reasonably precocious for her years, she is still very young. I note her involvement in the father's farm, something of which he is proud, and the fact that this will be interrupted to an extent by relocation. Nonetheless perhaps the other critical aspect of X's life is her relationship with her mother.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(j)
I have already dealt with this question. There may have been some family violence within the meaning of the Act, but it is not now a matter of any significance.
Section 60CC(3)(k)
This is not relevant.
Section 60CC(3)(l)
While the father's counsel put in the alternative that it might be appropriate to keep the mother in Australia for some years and see how that worked out, this was a proposition scarcely hard pressed. In my opinion it is utterly inappropriate to fudge the issue in this way. Either X must relocate to New Zealand, which I am convinced she should, or she should not. It is not in her best interests that her parents be engaged in litigation for several years to come.
Section 60CC(3)(m)
The critical consideration in this case in many ways, which might perhaps have been dealt with under some of the subsections above, is the mother's circumstances. She is in love with a man she is about to marry (and will have done so by the time these reasons for judgment are published). While the relationship certainly progressed quickly in its early stages, as I remarked to counsel, such development is by no means outside human experience and happens to mirror my own.
Furthermore, she and Mr R are not immature 18 years olds suffering from infantile infatuation. They are people of mature years who have both been through difficult failures in adult relationships. There is no reason to decry, as counsel for the father sought to do, the relationship between Mr R and the mother. There is every reason to suppose that it will proceed satisfactorily.
In addition to marrying a man with whom she is in love, and with whom apparently she proposes to have children, the relationship has the very significant benefit of financial security. The mother complained that she found it difficult as a single mother. Such a proposition accords with ordinary experience. She candidly conceded that the financial security that would be available to her in New Zealand was important. I do not regard that as doing her any discredit whatever. It is only natural and, indeed, in my view, perfectly proper that a mother should seek a secure financial future for her child, especially in circumstances where the father's current position is that he will not be paying child support because he will never be able to afford it.
That puts the matter in a positive light, but it is important to imagine the obverse if relocation is not permitted. It is immediately apparent that if the mother is not permitted to relocate she will be devastated. Her relationship with Mr R would come under severe strain on any view of the matter at the very least. She would be living alone in Victoria, her business being likely to be lost towards the end of 2017. To the hardship of being alone and without the partner she loves would be added the financial hardship that this would involve. It would be extraordinary if she was to be rendered anything other than utterly miserable as a result. This cannot in any way be to X's benefit.
I regard this proposition as being so self-evident as not to require further elucidation. It should be emphasised that it is not a question of elevating the mother's desires to a point where they become a self‑fulfilling and self-serving prophecy. They are, however, a fact of life in these circumstances.
Conclusion
In my opinion it is clearly in X's best interests to relocate with her mother to New Zealand. Taking all the above matters together, while it has to be readily acknowledged that there are disadvantages, which I hope I have detailed sufficiently, the overall picture is one in which overwhelmingly it is in X's best interests to go to New Zealand with her mother but to spend the substantial amounts of time that the mother's alternative orders (depending upon whether the father can obtain a visa to go to New Zealand) provide for.
The parties requested that the transcript of the proceeding be kept confidential insofar as it dealt with the father's confidential business arrangements, and I will make an order that that be done additionally to the parenting orders that the mother has sought, which were not of themselves, as I understand it, the subject of substantial challenge.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 20 January 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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