Malo & Annick
[2024] FedCFamC1F 194
•26 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malo & Annick [2024] FedCFamC1F 194
File number: BRC 5593 of 2022 Judgment of: BRASCH J Date of judgment: 26 March 2024 Catchwords: FAMILY LAW – PARENTING – International relocation – Where child thriving in current almost equal time – Where mother proposes to relocate with or without the child – Child not permitted to relocate – Orders made for equal shared parental responsibility and week about if both parents in Australia – Orders made for the child to live with the father and he have sole parental responsibility if the mother relocates. Legislation: Family Law Act1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 64B, 65AA, 65D
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.22(2)(b)
Domestic and Family Violence Protection Act 2012 (Qld) s 51(1)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18
Fortnum & Fortnum (No. 3) [2008] FamCAFC 133
G & C [2006] FamCA 994
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Loddington & Derringford (No 2) [2008] FamCA 925
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
U v U (2002) 211 CLR 238; [2002] HCA 36
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 160 Date of hearing: 5-7 February 2024 Place: Brisbane Counsel for the Applicant: Mr McGregor Solicitor for the Applicant: Damien Greer Lawyers Counsel for the Respondent: Dr Sayers Solicitor for the Respondent: McKays Family Law Counsel for the Independent Children's Lawyer: Mr Kalimnios Solicitor for the Independent Children's Lawyer: My Legal Crunch ORDERS
BRC 5593 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALO
Applicant
AND: MS ANNICK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS THAT:
MOTHER’S APPLICATION TO RELOCATE
1.The mother’s application to relocate the child, X, born 2019, to New Zealand is dismissed.
IN THE EVENT THE MOTHER REMAINS LIVING IN AUSTRALIA, THE COURT ORDERS THAT:
Parental Responsibility (if both parents are in Australia)
2.Orders 3–13 apply to the parents in the event both live in the Commonwealth of Australia.
3.Except as otherwise provided for in these Orders, the father and the mother shall have equal shared parental responsibility with respect to decisions about major long-term issues in relation to the child. For the avoidance of doubt, major long-term issues are issues about the care, welfare and development of the child which are of a long-term nature and include but are not limited to:
(a)The child’s education both current and future;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
4.In the exercise of their equal shared parental responsibility pursuant to Order 3, the mother and father must jointly make decisions about major long-term issues, by consulting with the other in relation to the decision to be made and making a genuine effort to come to a joint decision about that major long-term issue affecting the child.
5.If the child is spending time with either the mother or the father in accordance with Orders 6–13, then during that time neither the mother nor the father need consult with the other with respect to decisions made in relation to the child that are not major long-term issues.
Time arrangements (if both parents are in Australia)
6.The child shall live with each parent during the school term on a week about basis with changeover to occur after school (3.00 pm) each Tuesday.
7.The child shall spend time with each parent during school holidays as agreed to by the parents in writing, and failing agreement, as follows:
(a)In even numbered years:
(i)With the father:
A.for the first half of the March/April, June/July and September/October school holiday periods; and
B.for the first week of the Christmas school holiday period and each alternate week thereafter.
(ii)With the mother:
A.for the second half of the March/April, June/July and September/October school holiday periods; and
B.for the second week of the Christmas school holiday period and each alternate week thereafter.
(b)In odd numbered years:
(i)With the father:
A.for the second half of the March/April, June/July and September/October school holiday periods; and
B.for the first week of the Christmas school holiday period and each alternate week thereafter.
(ii)With the mother:
A.for the first half of the March/April, June/July and September/October school holiday periods; and
B.for the second week of the Christmas school holiday period and each alternate week thereafter.
8.The parents be at liberty to travel with the child within Queensland, interstate and overseas for a block period (“block time”) of up to 10 consecutive nights for a maximum of two (2) occasions in a 12-month period, provided that the travelling parent:
(a)Does not take two (2) block times consecutively, unless agreed to otherwise by the parents in writing; and
(b)Has given eight (8) weeks written notice to the other parent for overseas travel; and
(c)Has given four (4) weeks written notice to the other parent for interstate travel.
9.Neither parent shall travel interstate or overseas for block time with the child without the other parent’s prior written consent on:
(a)The child’s birthday;
(b)The non-traveling parent’s birthday;
(c)Mother’s Day or Father’s Day as celebrated by the non-travelling parent;
(d)Christmas Day; or
(e)Easter Sunday.
10.Unless otherwise agreed in writing, at the conclusion of block time, the child’s time with each parent continue in accordance with these orders as if the block time did not occur.
11.During the 10 day block time, on days three (3) and seven (7) and at all other times agreed between the parents or reasonably requested by the child, the travelling parent shall facilitate the child speaking to the other parent between 6.00 pm and 6.30 pm in the time zone the child is in.
Changeovers (if both parents are in Australia)
12.Changeovers shall occur as agreed between the mother and the father, and in failing agreement, as follows:
(a)If changeover occurs on a day the child is attending school or daycare, the parent whose time with the child is concluding shall deliver the child to school at the commencement of the school or daycare day and the parent whose time with the child is commencing shall collect the child at the conclusion of the school or daycare day; or
(b)If changeover occurs on a day the child is not attending school or daycare, the parent whose time with the child is commencing shall collect the child from the ordinary place of residence of the other parent; and
(c)The mother and the father may each arrange for a nominee to deliver or collect the child for the purpose of changeover provided that the nominee is an adult who is known to the child and approved in writing by the other parent; and
(d)Each parent shall ensure that at the conclusion of time spent with the child, all clothing and personal possessions that the child had at the commencement of such time is returned to the other parent appropriately laundered.
Special occasions (if both parents are in Australia)
13.Notwithstanding any other paragraph of these Orders, the child shall spend time with the mother and father on the following special occasions as agreed between the mother and father, and failing agreement, as follows:
(a)On the Christmas festive days:
(i)In even numbered years from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day with the mother and from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day with the father; and
(ii)In odd numbered years from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day with the father and from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day with the mother.
(b)On the Easter festive days:
(i)In even numbered years from the conclusion of school on the Thursday immediately preceding Good Friday until 12.00 pm on Easter Saturday with the mother and from 12.00 pm Easter Saturday until 12.00 pm on Easter Monday with the father; and
(ii)In odd numbered years from the conclusion of school on the Thursday immediately preceding Good Friday until 12.00 pm on Easter Saturday with the father and from 12.00 pm Easter Saturday until 12.00 pm on Easter Monday with the mother.
(c)On the child’s birthday with the parent she is not living for two (2) hours if it is a school day and for five (5) hours if it is not a school day;
(d)On each of the mother’s and father’s birthdays with the parent whose birthday it is from the conclusion of school (if the child is attending school on that day) or from 9.00 am until 4.00 pm;
(e)On Mother’s Day from 9.00 am until 4.00 pm with the mother; and
(f)On Father’s Day from 9.00 am until 4.00 pm with the father.
IN THE EVENT THE MOTHER RELOCATES TO NEW ZEALAND WITHOUT THE CHILD, IT IS ORDERED THAT:
14.Orders 15–21 apply to the parents if the mother relocates to New Zealand without the child.
15.For the purpose of the time provided for in Order 19, the mother is to book and pay for the costs of the flights from the City C airport to the City B airport and the father is to book and pay for the costs of the flight for the child from the City B airport to the City C airport, or as otherwise agreed between the parents.
IN THE EVENT THE MOTHER RELOCATES TO NEW ZEALAND WITHOUT THE CHILD, THEN BY CONSENT IT IS ORDERED THAT:
Parental responsibility and live with (if the mother is in New Zealand)
16.The child live with the father.
17.The father have sole parental responsibility in relation to the child.
18.In the exercise of his sole parental responsibility pursuant to Order 17, the father will, except in the case of an emergency:
(a)Make all reasonable attempts to inform the mother of any decision that needs to be made;
(b)If the mother has a view as to what the decision should be, she will communicate her view to the father within seven (7) days; and
(c)The father will consider any view expressed by the mother and as soon as possible after making the decision will notify the mother of the decision that he has made.
Time arrangements (if the mother is in New Zealand)
19.The child spend time and communicate with the mother at all times as agreed between the parents in writing, and failing agreement, as follows:
(a)For block periods of four (4) times per calendar year in New Zealand with the father to deliver and collect the child from the City B airport, with the time to fall in the child 's school holidays as follows:
(i)The Easter school holidays for 10 consecutive days;
(ii)For the first half of the June/July holidays in even numbered years and the second half of the June/July holidays in odd numbered years;
(iii)The September school holidays for 10 consecutive days; and
(iv)For four (4) weeks at the commencement of the Christmas school holidays in even numbered years and for the final four (4) weeks of the Christmas school holidays in odd numbered years.
(b)At all reasonable times as agreed when the mother is able to travel to Australia, with up to three (3) visits during each school term for up to seven (7) days, upon providing 14 days’ notice, with changeover to occur at the child's school if a school day, or at D Street McDonalds if a non-school day.
20.In the event that the child and mother are not in the same country on special days, the child shall communicate with the mother by telephone call, Skype or Facetime at all reasonable times, and in particular, between 6.00 pm and 6.30 pm (New Zealand time) on the following special days:
(a)The child’s birthday;
(b)The Mother’s birthday;
(c)Mother’s Day; and
(d)Christmas Day.
Schooling (if the mother is in New Zealand)
21.The child attend E School from Prep until the conclusion of her secondary school education, with the father to meet the costs of the child’s attendance.
IRRESPECTIVE OF WHERE THE PARENTS LIVE, BY CONSENT IT IS FURTHER ORDERED THAT:
22.Orders 23–38 apply to the parents irrespective of where they live.
Communication (wherever the parents live)
23.The child shall communicate with the party with whom she is not living by telephone, videocall, Skype or Facetime at all reasonable times, and in particular, between 6.00 pm and 6.30 pm each Tuesday, Thursday and Sunday, or as otherwise agreed between the parents in writing and the party with the child in their care is to be responsible for initiating the call.
Restraints/Injunctions (wherever the parents live)
24.Each parent be restrained by injunction from ingesting, using, consuming or in any way being under the influence of any illegal drug or substance and/or in any way exposing the child to any illicit substance.
25.Unless otherwise provided, the parties shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Encourage and foster the child’s relationship with the other parent;
(d)Inform the other parent of any significant events in the child’s life;
(e)Not use physical force in disciplining the child;
(f)Not consume alcohol to excess in the presence of the child, nor for 12 hours before and during any period that the child lives with or spends time with that parent;
(g)Not denigrate or insult the other parent (or any of the parents friends and/or family members) in the presence or hearing of the child, and use their best endeavours to ensure that others to not denigrate or insult the other parent (or any of the other parents friends and/or family members) in the hearing or presence of the child;
(h)Not attempt to discuss any issues in dispute between the parents, including but not limited to, these proceedings and associated matters with the child;
(i)Not allow a third party to discuss any issues in dispute between the parents, including but not limited to, these proceedings and associated matters with the child;
(j)Not show, nor discuss with the child, any documents associated directly or indirectly with these proceedings or any other proceedings involving the parents;
(k)Not question the child about the day-to-day care of the child whilst in the care of the other parent;
(l)Not encourage the child to refer to any person other than the child’s natural parents by the names “mother” and “father” or any derivations of those names; and
(m)Communicating with the father or mother by using the child to pass messages to the father or mother.
International travel (wherever the parents live)
26.Save for travel between Australia and New Zealand as provided for in these orders, the mother and father are permitted to travel overseas with the child, during their school holiday time, provided that:
(a)The travel is to a Hague Convention on the Civil Aspects of International Child Abduction country;
(b)The travel is to a country that does not have a current travel warning, except that of “exercise normal safety precautions”, issued by the Department of Foreign Affairs and Trade;
(c)The travelling party provides eight (8) weeks’ written notice of the intention to travel to the other party; and
(d)The following information is provided by the travelling party to the other party no later than 14 days prior to the departure overseas:
(i)A copy of the return flight tickets, as relevant for the child;
(ii)A copy of the full itinerary; and
(iii)Contact details for the child for the duration of the time the child is overseas.
Information to and from school (wherever the parents live)
27.The father and the mother authorise, by this Order, all schools attended by the child, from time to time, to provide to each of them all information/documentation sought by them in relation to the child's welfare, progress and activities at school, from time to time, (including, but not limited to, providing the mother and/or the father with copies of school newsletters and other notes/letters to parents, copies of the child’s school reports, details of the child’s parent/teacher interviews, copies of order forms for the child’s school photographs and certificates and awards obtained by the child, at each parent’s own cost.
28.The mother and the father shall each be at liberty to contact the teachers and/or principal(s) and/or administrative staff of all schools and/or daycares attended by the child, from time-to-time, (by telephone, in writing or in person), in order to obtain the information/documentation referred to in Order 27 herein.
29.Each party is permitted to provide a copy of these orders to the child’s school and/or daycare authorities should the parent consider it necessary to do so.
30.The mother and father are each authorised to attend any sporting, education or extracurricular activities undertaken by the child, whether or not the child is in that parent’s care at the time.
31.Both the mother and father shall jointly be authorised persons in respect of any enrolment forms for the child's education and/or daycare.
Notification Obligations (wherever the parents live)
32.The mother and father will:
(a)Inform the other and keep them informed within 48 hours of any change to their residential or postal address, landline, and mobile telephone numbers;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent; and
(d)Notify the other parent within 24 hours in the event:
(i)They are named as a Respondent or an Aggrieved in a Domestic Violence Proceeding; or
(ii)If there has been a Police Officer call out when the child is in their care.
Medical Emergency (wherever the parents live)
33.None of these Orders shall prevent the parents from having the child treated, as a matter of urgency, for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care for the child, but in the event of such treatment being required, the parent arranging such treatment shall immediately, and by the best means available, notify the other parent of the following details:
(a)The name and contact details of the medical professional administering the treatment;
(b)The medical or other complaint for which the child was taken to the medical professional; and
(c)Any treatment and/or medication prescribed for or provided to the child and the reasons for the prescribing or provision of such medication and/or treatment.
Child’s Routine Medical (wherever the parents live)
34.Except in the case of an emergency, the mother and the father shall each do all acts and things as may be necessary so as to ensure that in the event that the child needs to see a medical or other allied health practitioner(s) from time to time, that the child is taken to see her usual medical and/or other allied health practitioner(s).
35.The mother and father hereby authorise the child's doctors, health care and other treatment providers, inclusive of NDIS, involved with the child from time to time, including any case manager or contact person, to provide the other parent with information that they are lawfully able to provide about the child, and to liaise and exchange information directly with the mother and father at his/her request and this Order shall serve as such authority.
36.The parents are at liberty to provide a copy of these orders to the child’s medical and allied health providers.
Dispute Resolution Conference (wherever the parents live)
37.If there is a dispute about the child, the interpretation, implementation or enforcement of these Orders, or the parents exercise of equal shared parental responsibility (as arises under Orders 3 and 4), then before making any further application to a Court the parents must:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) or by the Commonwealth Attorney-General; or
(b)Participate in family dispute resolution with a Family Relationship Centre or a person authorised under s 10G of the Family Law Act 1975 (Cth).
Counselling (wherever the parents live)
38.On a without admission basis, the mother and father shall forthwith:
(a)Attend upon their psychologist on days and times as directed by the psychologist for at least 12 months, with a focus on individual counselling to address communication, anxiety and co-parenting issues;
(b)Provide their psychologist with copies of these Orders and the affidavits of the following parties, as filed within these proceedings:
(i)Family Report writer, Mr F;
(ii)Ms G; and
(iii)Dr H.
IRRESPECTIVE OF WHERE THE PARENTS LIVE, THE COURT FURTHER ORDERS THAT:
39.Orders 40-48 apply to the parents irrespective of where they live.
Communication App (wherever the parents live)
40.Except in an emergency, the parents shall communicate using the Talking Parents app (or such other app as agreed by the parents from time to time in writing) and each parent shall take all necessary steps to register within 14 days of the date of these Orders, if not already registered.
41.The parents shall communicate via the “Talking Parents” app or such other agreed parenting app:
(a)With communication limited to the child’s routine, health, medical appointments, school activities, extra-curricular activities, social events relating to the child and giving effect to these Orders;
(b)Save for emergencies, when the parents are at liberty to communicate by any other means necessary.
42.In relation to the use of the Talking Parents app (or other agreed app), the parents shall ensure that:
(a)The app remains installed on their main communication device;
(b)Their main communication device remains sufficiently charged during any communication ordered herein;
(c)None of the parents are blocked, preventing communication; and,
(d)Video and audio call capabilities always remain enabled.
43.In addition to the app, the parents be at liberty to copy each other into email correspondence with relevant professionals for matters regarding the child.
Passports (wherever the parents live)
44.The child is permitted to have Australian and New Zealand passports.
45.Within 14 days of one party providing the Australian Passport Application/Renewal Form/s for the child to the other party, the other party shall execute the forms and return them to the requesting party, and the father shall within seven (7) days lodge the fully signed Application/Renewal and provide confirmation of same to the mother.
46.Within 14 days of one party providing the New Zealand Passport Application/Renewal Form/s for the child to the other party, the other party shall execute the forms and return them to the requesting party, and the mother shall within seven (7) days lodge the fully signed Application/Renewal and provide confirmation of same to the father.
47.Should either party fail to execute the Passport Application/Renewal Form/s for the child in accordance with Order 45 and 46 herein, the requirement for that party’s consent shall be dispensed with.
48.The child’s New Zealand passport will be held by the mother and the child’s Australian passport held by the father, but if either parent requires the other passport for travel (“the other passport”), then:
(a)Upon the parent not in possession of the other passport providing four (4) weeks’ written notice of the intention to travel, the parent in possession of the other passport shall, within seven (7) days of same, provide the child’s passport to the other parent; and
(b)The parent shall return the other passport to the relevant parent within seven (7) days of the child’s return from overseas.
LIBERTY TO APPLY
49.Liberty is granted to each party to relist this matter on seven (7) days notice with respect to the interpretation or implementation of these orders.
FINALISATION
50.The Independent Children’s Lawyer is hereby discharged.
51.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
X (“X”) is the much-loved only child of her father, the applicant, Mr Malo (“the father”), and her mother, Ms Annick (“the mother”), the respondent. X was born 2019 and has turned five years old.
Despite the very clear love each parent has for X, and despite the evidence that she is thriving, has a very good relationship with both parents, and is meeting all of her developmental milestones in the current almost week about arrangement, sadly for X, the parents’ choices about their future living locations means X will likely not have the benefit of both of her parents regularly involved in her life.
The applicant and respondent presently live in City C, Queensland. The father wishes for the mother to stay in City C and share a week about arrangement with the child. The mother, however, is determined to relocate to New Zealand, with or without X.
Background
The applicant father was born in 1991. He has lived in the City C region all his life. He describes himself as a manager running a business.
The respondent mother was born in 1991 in New Zealand. She moved to Australia when she was about 20 years old and has lived in City C for approximately 10 years. The mother works part-time as a health professional, having engaged in tertiary studies during the parties’ relationship.
After about three months of dating, the parties commenced cohabitation in 2016 in City C. X was born in 2019 in City C. The father accepted in cross-examination that the mother cared more for the child in her first two years; he worked long hours to provide for the family and worked away for about 11 months during this period. This was undoubtably a stressful time for both parties, especially the mother. She felt isolated and no longer enjoyed independent income earning, the self-esteem and self-confidence that came with that for her, a carefree or less routine lifestyle.
The parties separated in December 2020, in City C, when X was less than two years old. The mother physically left the former matrimonial home with the child in early January 2021.
In early 2021 the mother bought a house in City C funded by selling her house in New Zealand. The father says the parties live close to each other. Since then, X has had equal or close to equal time with her parents. The mother contends the father forced an equal time arrangement upon her; the father denied this. I do not need to resolve this other than finding that the child’s reality was one of relatively equal time between both parents in the post-separation period.
Mother’s Day 2021 was a source of tension between the parents.
The parties’ post-separation dealings with each other deteriorated after intimate relations between them in November 2021, almost a year after separation. The details of what actually happened between them are irrelevant for present purposes save to say the events around this time lead to a fracture in the parties trust of each other and progressed them down a path of dispute and acrimony. In what can only have been a distressing and highly emotionally charged time, both parties behaved poorly.
The mother applied for a domestic violence order in late 2021 but withdrew it in early 2022. The mother again applied for domestic violence orders in early 2022 and the father cross-applied in early 2022. Ultimately mutual final domestic violence orders were made by consent and without admissions in late 2022.
Matters between them were not helped when in early 2022 the mother (to use the father’s words) sabotaged the child’s interview for attendance at a particular school. The mother acted in a way that made it plain to the father she did not agree with the enrolment. They had an incident in the carpark afterwards, with the mother wanting to talk and the father driving off after the mother tried to stop him.
The parties made allegations and counter-allegations of family violence and abuse, which I will consider under the heading of family violence below. Both parties accept that since the making of the mutual domestic violence orders in late 2022, things had been “quiet” between them. They use a Parenting App to communicate about X. I also accept the Independent Children’s Lawyer’s (“the ICL”) submission in their Outline that the parties’ relationship started to “regularise” when their intimate relationship ended a year or so after their actual separation.
In early May 2022, the parties’ relationship further deteriorated. Both parties raised allegations of drug abuse against the other, with each insisting on drug testing. Ironically, whilst each accuses the other of illicit drug use, each confirm participating in such activities.
The parents could not agree how and when the child might see the mother on Mother’s Day 2022. The father refused to allow the mother to use a friend to effect changeover and kept the child.
Consequently, on 13 May 2022, the father filed an Initiating Application. The mother responded on 24 May 2022. On 26 May 2022, interim parenting orders were made including that: the child spend eight nights a fortnight with the mother and six nights a fortnight with the father (five nights in one week and one in the other); sharing special occasions; a drug testing regime; the production of a Family Report; and, the appointment of an ICL.
Those time arrangements remain in force today.
In late 2022, the matter returned to court to resolve the parent’s dispute about kindergarten for the child in 2023. A judge determined X remain at her current learning centre (the mother’s position) and not change to a new kindergarten (the father’s position). Ironically, the parties later resolved to send the child to the father’s preferred school for prep in 2024.
The parties did have property proceedings but settled that through a conciliation conference on 30 March 2023.
Material
The parties spent many pages each dissecting the entrails of their doomed and erratic relationship, each throwing stones at the other, as if living in a glass house. For example, the father complained about the mother putting undoubtedly upsetting material in his letter box post-separation, but he did the same to her. The mother complained about the father’s threats to post intimate material on social media, but she felt compelled to threaten such posts herself. Each complains about hurtful and/or derogatory things said by the other, but both have said things which they either now belatedly express regret or explain as product of being hurt or “petty” or “salty” at the time.
The focus of each parent’s criticisms of the other in their trial material was notwithstanding what the Family Report writer said in his first report:
114.Post separation the parents’ accounts tend to focus less on the welfare of [X] and more on the various episodes between them as they were each unable to separate completely and remained in a semi holding pattern of relations coupled with a series of crisis.
(Family Report dated 5 September 2022, paragraph 114)
The parents’ concentration on their adult dispute in their affidavits is also in circumstances where the father proposed, and the mother agreed in cross-examination, for X to spend week about and half holidays with the parents should the mother remain in City C. Each is therefore saying the other is a good enough parent. That said, the mother’s concessions about time in Australia are not proposals she puts forward for consideration in her case.
The focus on the adult differences is also in circumstances where on all accounts, X is thriving, clearly loves both parents, relishes her time with each, and, is meeting all developmental milestones.
Understandably, the mother’s and father’s experienced counsel did not cross-examine on many of the adult disputes raised by their clients at trial.
Both parties filed case outlines as did the ICL, and each relied upon the affidavits set out therein.
The father’s sister, Ms J, was not required for cross examination. Not surprisingly, she was supportive of the father’s position, saying they are a very close family who try to see each other whenever they can. She opposed the relocating saying it would “impact our whole family immensely”.
Curiously, the father did not file an affidavit from his current partner, Ms K, with whom he intends to live in a de facto relationship in the not so near future. Ms K has two young children. In the first Family Report the father described a relationship with a different woman (who had three children) with whom he also expressed an intention to live; “I see it as being long term” (Family Report dated 5 September 2022, paragraph 37). Given the mother intends to go to New Zealand with or without the child, she cannot be too troubled by the father’s relationships.
The mother’s witness, Ms L (the maternal grandmother), was not required for cross examination. She was unsurprisingly supportive of the mother’s position saying she observed the mother’s “bad periods” when dealing with the father during and post the relationship. Ms L also deposed to the proposed living arrangements for X if she were permitted to relocate to New Zealand, including that the mother’s income from work on their property would “supplement” her income.
The ICL relied on two expert witnesses, and both were cross-examined:
·The Family Report writer, Mr F, whose affidavit was filed 19 January 2024; and
·Clinical and Forensic Psychologist, Dr H, whose affidavit was filed 6 September 2023.
Six Exhibits came into evidence.
Legal principles
Orders with respect to children are made under Pt VII of the Family Law Act1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act sets out the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
Best interests of the child
The best interests of the child is the paramount consideration (s 60CA) and is determined by an examination of the considerations set out in s 60CC of the Act.
In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
Section 60CC(2) contains two primary considerations – in short, the benefit to the child of having a meaningful relationship with both parents, and, the need to protect the child from the harm of being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations, s 60CC(2A) requires the Court give greater weight to s 60CC(2)(b), being protection from harm.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
Parenting principles apply with equal force to applications for the international relocation of a child, just as they do in other parenting applications. Indeed, in Zahawi & Rayne [2016] FamCAFC 90 the Full Court stated that:
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
I must weigh up the parties’ various competing proposals, while maintaining the best interests of the child as the paramount consideration. However, a determination of what is in X’s best interests does not mean that the legitimate desires and interests of her parents are ignored; rather, where those interests conflict with the child’s best interests, the former must give way to the latter (AMS v AIF (1999) 199 CLR 160 at [207]‑[208] (“AMS v AIF”)). Whilst a parent enjoys the right of freedom of movement to live wherever they choose, that right must defer to the paramount consideration, being what is in the best interests of the child (U v U (2002) 211 CLR 238 (“U v U”) at [89]).
Section 60CC(2)(a): a meaningful relationship
There is no contest in this matter that X ought have a meaningful relationship with both parents. With respect to the concept of meaningful relationship, see: Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) per Cronin J at [169] (that for there to be meaningful relationship, it must be “healthy, worthwhile and advantageous to the child”); Cotton & Cotton (1983) FLC 91-330 (“Cotton”) per Nygh J at 78,252; and, McCall at [122].
Importantly, given the parameters of this matter as set by the parties and the possibility of X being removed from one parent, the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [182] endorsed what was said by Kay J in Godfrey & Sanders (2007) 208 FLR 287:
36.It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
(Emphasis added)
Unsurprisingly, the mother says her proposal for X’s time with the father, if allowed to relocate the child, will maintain a meaningful relationship. Equally unsurprisingly, the father says not.
The father also accepted that his alternate orders for time between the child and the mother if the mother left Australia alone, was “not ideal” for maintaining the child’s meaningful relationship with the mother.
The Report writer's clear evidence was that X's best interests would be served by the child having both parents involved in her life on a regular basis.
Section 60CC(2)(b) protection from harm
The father said he was concerned about historical risks posed by the mother, but given he has agreed to week about, he cannot maintain they are factors with which I must now be concerned.
By virtue of the orders each seek, neither can be saying the child needs to be protected from any harms caused by the other parent. I agree.
Additional s 60CC(3) factors
Wishes
X is too young to express a view, although she is clearly bonded to each parent and enjoys a positive, healthy and meaningful relationship with both.
Nature of relationships
Both parties express the view that the child has a very good relationship with each. I accept that to be so. I also accept the child has meaningful relationship with the wider maternal and paternal families, but by dint of geographic proximity sees more of the paternal family.
Despite questions to the contrary in cross-examination, I accept the mother’s evidence that she has a good relationship with her parents and they speak often. Nothing turns on an historical lack of communication from the maternal grandfather to the mother over a work choice the mother made. That is ancient history.
It seems the mother has two close friends in City C –and a friend who will rent her City C property. She spoke of other friends but did not describe them as close. I have no idea about friends in New Zealand, but I accept her family is there.
The father offered no cogent reason why his partner Ms K was not a witness in his case, even though he agreed that she “will be a significant part of her [the child’s] life”. The orders proposed by the mother mean she cannot be concerned with this.
Taking opportunities
Apart from some bickering over Mother’s Day in 2021 and 2022, each parent has taken all opportunities available to them. However, if the mother goes to New Zealand without X then she will, by her choice, limit the opportunities the child has to spend time with her. Similarly, if the mother and child go to New Zealand, the father’s opportunities to spend time with the child will also be limited.
Curiously, the mother does not join with the ICL and father who propose equal shared parental responsibility if both parents are in Australia. Her counsel said that reflects her adamance about returning to New Zealand and if she later returned to Australia, it would then be a Rice & Asplund issue. Counsel was there referring to the test in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
Maintaining the child
The mother says the father takes whatever steps he can to minimise child support payments to her, including not providing financial information sought by Services Australia and not telling that entity what he swears in this court, being that he earns almost $300,000 gross a year. The mother also complains that even though the father said he would pay 100 per cent of the child’s school fees, he then sought to reduce his child support assessment because of that. That has the outcome that the mother is indirectly contributing to the fees, by the reduction in child support paid to her. The mother says she contributes 30 per cent of the fees via this indirect means.
It seems both parties have availed themselves of the change of assessment, cross application and objections processes, as they are entitled to do. Their disputes about child support are better suited to be entertained by the entity set up for same.
In the meantime, no submissions were made that anything turned on this consideration.
Effect of change, practical difficulties
If both parents are in City C, they are agreed on week about – the mother said this in cross-examination (although her concession is not a proposal) and the father and the ICL proposed this in their final Minute of Orders (Exhibit 6). That poses little change for the child and comes at little, if any, additional financial cost.
The mother’s proposal to relocate the child to New Zealand is a huge change for the child, who will lose the regular care and involvement of her father in her life. Alternately, if I do not permit the child’s relocation and the mother goes anyway, that too will be an enormous change for the child in losing access to the mother’s regular care and involvement.
The father highlighted the child’s friends in City C, but at just five years of age I do not put much weight on that. For example, in all likelihood, she moved from one friendship group at her former kindergarten to another friendship group at her new prep for 2024. It may be some of her former kindy friends may attend the new school this year, but the point is even on the parent’s schooling decisions there will be changes for X.
I accept the child also enjoys time with the wider paternal family and sees them often. But the flip side of that is that she does not enjoy the same regular interactions with maternal family in New Zealand. The inverse would become true too if I permitted the child’s relocation to New Zealand.
Whilst X has lived in City C since birth, she is not a stranger to the mother’s hometown area in New Zealand. The father says the child has been to New Zealand as a family or with the mother five times, at two to three weeks a visit. He appropriately observed that Covid made international travel more limited.
If the mother is permitted to relocate with the child, or even if she goes without the child, then that comes with significant financial cost. The parties’ proposals at Exhibit 6 see the parties sharing the costs of travel between Australia and New Zealand. I am circumspect about the mother’s capacity to fund flights. For example, the mother was unable to say what she would earn working on the family property, and what she might earn working as an enrolled health professional. The mother may be able to acquire a job at Town M, New Zealand, but the letter from the manager is far from definitive (Exhibit 2, p.53).
I accept the mother will have the benefit of no rental costs when living with her family, but she agreed her income and expenses in New Zealand were “unknown”. She said her family had offered to pay the costs of the child visiting the father in Australia, but the problem with that is I cannot order those family members to do so; they are not parties.
On the other hand, the father said he “could go [to New Zealand] once”. I take that to be once per year. For unexplained reasons, the father was most reluctant to concede a rather obvious fact – if he was no longer paying $10,000 a year for the child’s schooling, then some money would be freed to fund travel. Appropriately, his counsel conceded that to be so. The father also said he would be able to sell off assets if he faced difficulties in paying for the child’s education, but did not include overseas travel to see his daughter in that asset sale proposal. Further, the father’s Financial Statement reveals gross income of $5,727 a week (almost $300,000 gross per annum) and a surplus of income over expenses of $1,300 per week. I do not conclude the father’s finances to be as dire as only permitting one trip to New Zealand a year.
I do however accept he would not be interested in staying at the maternal family property in Town N. The mother said there were more accommodation options in Town M, a 10 minute drive away. Wherever he stayed, the father would have costs of airfares (he says an average of $1,400 return), a hire car (he says $80 a day plus insurance and fuel), accommodation and living costs for he and the child.
All of that said, the parties are agreed to share the costs of the child’s travel to and from Australia and New Zealand, if it arises under relevant proposed orders. The father also has the cost of accompanying the child to the City B airport. I will accept their proposals as being based on capacity to do so.
The trip from the mother’s hometown in New Zealand is also one of some moment. It starts with a long drive from Town N to the City B airport (and possibly an overnight at the mother’s brother’s house the night before the flight), then the flight from City B or another city to Brisbane. Then there is another flight to a city in Queensland. The mother estimated it involved about 11 hours of travel and would be unlikely contained to one day. She agreed the 11 hours was “cutting it fine”. More likely than not, the child’s travel from New Zealand to Queensland will span two days and the same in reverse.
Capacity to parent, parental responsibility:
The father complains about the mother’s drug use, although admits to using an illicit drug with the mother on New Years’ Eve in late 2017 and early 2018. He denies the mother’s assertions that they used the drug together in late 2020 and cannot recall whether they did in mid-2021. Looking prospectively, nothing can turn on this given the orders proposed by the parties, including the agreed injunctions.
The father was cross-examined at some length about his work commitments and availability to the child. The mother was also critical of the father’s use of long daycare. However, given the mother is going to New Zealand with or without the child then the father’s availability to the child around work is not something that can be seriously exercising her mind. I accept that to be so and also accept working parents have to make alternative care arrangements for children. Day care, even long day care, gives children opportunities to socialise and learn lessons about engaging with others.
In and around separation neither party behaved well. Both tended to immature pettiness, for example, when the father would not let the child see the mother on the morning of a Mother’s Day because it was “his” time. He was also critical of a parenting plan the mother drafted in 2022 to facilitate a visit to New Zealand, but did not draft an alternate plan himself. The father complained about the mother’s social media posts and derogatory name calling, but he has called the mother derogatory names, made inflammatory social media posts and made unnecessary references to her pre-child employment in his affidavit. As I said at trial, the irony was not lost on me that the father was critical of the mother’s former work choice, but that is where he met her.
In the week of trial when both parties were in Brisbane, the mother preferred her friend care for the child than the paternal grandmother who had offered. The latter is in circumstances where the mother asks me to accept she will foster the child’s relationship with the father and therefore his family, if she and the child are in New Zealand. The mother also behaved poorly in an interview with E School to achieve her outcome of the child not attending there. Ironically, that is where the child is now enrolled.
That said, I accept the mother invited the paternal grandmother and paternal aunt, Sara, to the child’s kindy graduation and has sent cards and photos of the child to the father. The Family Report writer agreed these were good indicators of the mother supporting the child’s relationship with the paternal family but added “if there is substance behind it. They are small patterns”.
I accept both parties’ evidence that the tensions between them by and large abated on the making of the parenting orders in May 2022 and the mutual domestic violence orders in late 2022.
In the second Family Report, the mother said she no longer held some of the views she expressed in the first Family Report – that X will have a “massive ego” feeling she is better than everyone else, being a reference to the mother’s perception of the father; and, that he will “severely damage her mentally...the way he did me” (Family Report dated 5 September 2022, paragraphs 25–26). Similarly, the mother said she no longer holds the view that the father’s bond with the child is less significant than hers (Family Report dated 10 January 2024, paragraph 63). I am more circumspect about accepting the latter comment because the mother also said in the same report that the child’s loss of the father might be “a little difficult” for her, but said the child would be devastated if she lost her mother. Eventually, the mother conceded in cross-examination that “it would be very difficult for her [the child]” and accepted there is a big difference between the child seeing her father six days per fortnight to going three months apart. I consider the mother still minimises the importance to X of having both parents in her life.
At the end of the day, whilst the parents have had their tensions, when the father proposes week about if both parents are living in Australia and the mother proposes the child live with the father if she cannot relocate with the child, then neither can impugn the parenting capacity and responsibilities of parenthood in the other.
That said, the mother’s mental health looms large in this matter.
The mother understands she has been assessed or is being treated for having Post Traumatic Stress Disorder (“PTSD”) and/or anxiety. She says she can be triggered by the father and gave an example of Mother’s Day 2022 when the father “dictated” (mother’s word) the child could spend three hours with the mother on that day. That no doubt would have reminded her of Mother’s Day 2021, when, I accept, the father texted the mother in a high handed fashion about “generously offering” time but also with the menace of “[d]on’t be an arsehole and make me change my mind” (Exhibit 2, p.71). The father’s emails on that topic were autocratic.
The mother had patchy engagements with therapists in 2022; see Exhibit 3. Some cancellations were due to her shift work. The mother’s psychologist at the time, Ms G, explained that she was supporting the mother through crisis presentations and that it was “hard” to get appointments with her. Ms G was not troubled by the mother’s ad hoc attendances upon her.
The mother said the sessions and therapy with Ms G from early 2023 have been very helpful. The mother also accepted that in 2023, the parties had few interactions but maintains she feels controlled, intimidated and in fear of the father. City C is a small enough town and it stands to reason their paths would cross like they did at a retail outlet in August 2022. It stands to reason the mother would see his car. She says these are triggering factors for her.
In 2023, the mother expressed frustration with the court process, anxiety about seeing Dr H the Single Expert psychologist, and, complained about the adversarial system. The trial is over and these are my reasons. Subject to any appeal, the stressor that the litigation may pose has come to an end.
Ms G, the mother’s previous psychologist, provided reports attached to an affidavit and was cross-examined in these proceedings. Ms G explained she had not seen the mother since August/September 2023 as she (the psychologist) had taken extended leave. The witness accepted that her views about the mother were based on the mother’s self reporting, including for example, the mother saying she had been in an abusive relationship with the father.
Ms G’s “[t]o whom it may concern” letter of April 2022 is not terribly persuasive. It speaks to the various allegations of the mother and then to her “heightened anxiety” and sleep disruption due to the father’s conduct.
The psychologist’s report of July 2023 is also problematic. For example, the factual basis for many conclusions was largely unstated, rendering the report not terribly helpful; (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”)). Equally, it is not clear from the affidavit if the psychologist’s understanding of the mother wanting “full custody” is in New Zealand. Little is said in the report about how a move to New Zealand will improve the mother’s mental health challenges, or not.
To be fair to the psychologist, she was not instructed to provide an opinion on the mother’s mental health if in City C or New Zealand but that “[Ms Annick] has requested an independent personality assessment to inform decisions about her suitability as the custodial parent of [X] [sic]”. Any instructions to Ms G beyond that have not been provided. The psychologist does not address the topic posed to her.
It is also unclear how opinions such as the following sit with the mother’s position that if she cannot relocate with the child, she will go to New Zealand anyway leaving the child with the father:
[Ms Annick] reports a history of domestic abuse (coercive control) perpetrated by her ex-partner and is concerned about her daughter's long term psychological well -being if her ex-partner were to be granted custody...
(Affidavit of [Ms G] filed 23 January 2024, p.10)
Similarly, it is not clear if the following relates to the mother being in City C or New Zealand:
In considering [Ms Annick's] social environment, with respect to perceived stressors and the availability of social supports with which to deal with these stressors, her responses indicate that she reports having a level of stress comparable to that of normal adults, with the demands of the environment buffered by a large number of individuals to whom she can readily turn for support…
(Affidavit of [Ms G] filed 23 January 2024, p.13)
The following paragraph also presents a particular problem with respect to the factual basis for the apparent diagnosis of PTSD:
…[Ms Annick] developed post- traumatic stress symptoms associated with her dealings with her ex-partner including the removal of access to her daughter by refusing to return her according to court directed custody arrangements...
(Affidavit of [Ms G] filed 23 January 2024, p.10)
At least on the evidence before me, there was no “removal of access to her daughter by [the father] refusing to return her according to court directed custody arrangement”. When the father held the child over after Mother’s Day 2021, the matter was not before the Court, much less “court directed custody arrangements”. It may be the father not replying in time for X to go to a funeral with the mother is another example relied upon by Ms G, but it is not clear to me from the mother’s material that she asserts that as a breach of orders, nor is it clear to me that the father breached any orders by not replying in time or taking X into his care when the mother placed the child with a friend when she (the mother) went to New Zealand without X. In so far as either of those are the basis for the PTSD diagnosis, then it cannot be sustained.
The mother told Ms G that she “has a history of abusive relationships which have gradually eroded her confidence and self -esteem”. The earlier abusive relationships makes it hard to sheet home all of the mother’s mental health challenges solely to the father. It is also hard to see how the act of moving to New Zealand will negate those traumas as perceived by the mother.
At page 14 of the Report, Ms G says:
[Ms Annick’s] symptoms and diagnoses are in line with findings which are well documented in contemporary psychological research on the impact of coercive control on a victim's self-confidence, self-esteem, stress, anxiety, low mood states, isolation, development of somatic complaints, feelings of paranoia, physical health, and general poor psychological well-being. The current severity of her symptoms appears to be related to her previous history of domestic violence.
(Affidavit of [Ms G] filed 23 January 2024, p.14)
The problems with these conclusions include that the “contemporary psychological research” is not specified, see r 7.22(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which requires the expert report to include “the literature or other material used in making the report”. It is also not clear how this paragraph factors in the mother’s previous violent and abusive partners, as opposed to perhaps trying to portray that this solely comes back to the father. Later in these reasons I do not make a finding of coercive control (as opposed to bad domestic behaviour) thus the lack of factual support means the diagnoses fall away. I have also referred to the diagnosis of PTSD in so far as it relies upon the child being held over contrary to court orders, which did not occur.
The cross-examination of Ms G was unremarkable. At its height, Ms G agreed that the mother’s anxieties stem from a number of abusive relationships and that produced a “compounding effect” on the mother.
The Single Expert psychologist, Dr H, did not consider the mother had PTSD. In her report she said the mother “meets the criteria for [an Anxiety Disorder]”. Dr H added:
The anxiety and worry has caused her clinically significant distress in social situations, family situations. I consider she is moderately impaired by this disorder. At times of heightened stress, she can become quite dysregulated and also experience panic attacks. None the less she is managing to hold down a […] job, manage her own household, look after her daughter on her designated days, and socialize with others.
…
As noted above [Ms. Annick] meets the criteria for an Anxiety Disorder, namely Generalized Anxiety Disorder, which waxes and wanes in relation to stressors in her life such as conflict and court. However she is not incapacitated to a point that she cannot manage day to day functions.
…
Her condition may from time to time make it difficult for her to parent [X] for short periods of time. However, her general capacity to parent would be unaffected.
…
[Ms. Annick] has her own house, and is working in her chosen profession […] in [City C], as well as her daughter [X]. She does have friends and associates. However she believes she requires more emotional and social supports from her family and friends in New Zealand.
(Affidavit of [Dr H] filed September 2023, p.19)
In cross-examination, Dr H said:
·If the mother stayed in City C without support, it will be difficult for her “if she had friends and some family in [City C] that would be fine but she does not” and that “her friends and family are in New Zealand”. However, I observe, the mother does have some friends in City C;
·It will be “difficult for her” to move to New Zealand without the child and added it would be “more difficult for her in [City C] as opposed to New Zealand”. She further said it would be “more difficult for her in [City C] both with and without her child”;
·She expanded ‘more difficult’ would mean “not having family, friends, New Zealand is where she is familiar with” and “she did not have that support network and that was what would have made it easier for her if she went to New Zealand with support and family”. But, I add, the mother has accessed supports for her mental health through both Ms G and O Health Services;
·The mother can manage day to day functions and her anxiety disorder waxes and wanes;
·In all probabilities, her anxiety disorder is made worse in City C;
·With respect to the sustainability of the mother living in City C:
Her general capacity to manage day to day functions would probably not get to point where she was incapacitated. Being incapacitated to me means you can’t carry out your day to day duties. She may well be very stressed and depending on what’s happening in her life now, but I do not think her problems were such that she will be incapacitated to a point where she cannot manage day to day functions.
She can manage her day to day life, she can manage her household, she can manage to function, she could make any decisions she needed to.
·Dr H accepted the mother would be very stressed despite her general capacity;
·Her evidence was consistent with the Family Report writer’s opinions about the mother’s resilience if in Australia.
The Family Report writer accepted the mother’s presentation as being stressed/anxious living in City C. He accepted New Zealand presented a “release valve” for the mother. He also accepted that if the mother was less stressed in New Zealand that would be a benefit to her parenting of X but added an important caveat to that, being that would be so if considered “in the prism of child and mother”, but if the father was included in that equation “then it is not the same. There is a bigger picture”.
Mr F said it was speculative that the mother’s condition would deteriorate in City C, and was not of a mind the mother’s mental health would do so. He added “there have been improvements [between the parents]. The child is settled”.
When asked about the mother’s resilience, he said he was more inclined to the view that the mother would find resilience in City C than deteriorate and added that the child “is prospering and doing very well”. He said both parents are being good parents and expressed that he “was pleased” seeing the parents for the second report because there was less conflict.
He agreed that both parties’ capacity to support the child’s relationship with the other from afar was untested.
The mother gives no evidence about her plans for mental health treatment in New Zealand or whom she might see or at what frequency or treatment modality. A letter from the charge nurse at the Town M Hospital (closest to the mother’s family residence) indicates specialists do not attend there. The mother’s evidence was the nearest town with psychologists is 90 minutes away. That is not a prohibitive distance.
I do not accept the notion that all will be fine in New Zealand just by dint of being able to relocate. The mother’s traumas come from, on her case, the father and, the “compounding effect” of earlier violent relationships. That will follow her wherever she resides. The triggers from communicating with the father will also remain wherever she is. True, if the mother has sole parental responsibility with the child in New Zealand, that might obviate some communications to-and-fro, but she would still have to consult with him prior to making any major long-term decisions. The same applies for the sole parental responsibility order if the child remains with the father in Australia and the mother leaves. She will also have to deal with him about flights and travel arrangements, along with changes should flights be delayed and cancelled. The mother deposed:
193.Despite my best efforts to work on my mental health, engaging regularly with health professionals and implementing the strategies recommended, I still, more often than not, have a reaction when needing to co-parent with [Mr Malo], coming into contact with [Mr Malo], or receiving communication from [Mr Malo] that affects my day to day ability to function in the ways deposed to herein. The impact of that extends to my ability to parent [X]…
(Mother’s affidavit filed 16 January 2024, paragraph 193)
It is unexplained, or otherwise unclear to me how the act of moving to New Zealand will be the cure for these feelings or responses, when on any of the proposed orders the mother will still have some form of coparenting and communications with the father. Working through the compounding trauma from a series of violent past relationships will also follow her.
In the meantime, there is no evidence before me that the child is suffering in any way from the sequala of the mother’s mental health issues. The father cannot be suggesting that given he agrees to week about and equal shared parental responsibility if the mother remains in City C. On all accounts the child is thriving and meeting all milestones.
There is also a tension between the mother’s position. On one hand she wants to leave Australia to escape involvement with the father and what she perceives to be the father’s controlling ways. Yet, on the other hand, says, essentially, ‘trust me’ I will foster the child’s relationship across borders with the very person whom she seeks to escape and avoid.
I am alert and alive to the mother’s mental health challenges, but my focus must be on X’s best interests.
Maturity, sex, lifestyle and background
The child enjoys both a New Zealand and an Australian heritage. I have no doubt that whatever the parenting arrangements, each parent will imbue the child with a connection to their respective backgrounds. I do accept though that X will be more connected to Australia if she lives here and become more connected to New Zealand if she lives there.
Family Violence
Both parties allege they were the victim of family violence and the other the perpetrator.
Each also accused the other of performing non-consensual sexual activities on them. However, contemporaneous texts and messages do not support such happenings. For example, when the father deposed to an allegation of a non-consensual sexual event on his birthday, his subsequent message to the mother concerned other relationships he said the mother was having and did not reference non-consensual sexual relations. I am also unable to find the father performed non-consensual sexual activities when she had had too much to drink. The particulars of the allegations were few and far between.
The mother alleged that the father controlled her during the relationship. The allegations of control included: pressuring her to stop working in the occupation she undertook when and how they met, instead offering to pay her an allowance of $500 per week to study; not transferring the $500 per week which left her without access to any funds; expecting her to be at home when he was; not allowing her to have a cigarette; and, installing security cameras at their property. It is clear the mother felt isolated when the father was away for work, but an unhappy relationship is not family violence. Given the father’s parenting proposals, there was, properly, little, if any, cross-examination of the mother about her allegations during the relationship.
The mother made complaints to the police prior to the making of mutual final domestic violence orders in late 2022. Those complaints included:
(a)On 16 July 2022 (just before the first Family Report interviews) at a nightclub/hotel in City C, the mother alleged the father was at the venue when she arrived but they sat on opposite sides of the venue. The mother deposed she was walking from the bar to go outside and that the father’s then girlfriend threw a drink at the mother so she threw one back. However, Exhibit 4 page 2 summarises the police review of CCTV footage, which does not accord with the mother’s account. The police observed the mother bump into the father’s girlfriend and drinks were spilled. The mother has behaved poorly on her own account, but I prefer the police evidence of an accident. A curiosity arises from this though – if the mother is triggered by the father’s presence (as she says), why did she stay at the venue when she observed the father already there;
(b)In mid-2022, the mother saw the father at a retail outlet. The mother alleged the father yelled out “are you hiding her [the child] from me?”. She said she kept walking inside towards the back of the store where a staff member escorted her to the back exit of the store. The police concluded it was a chance meeting (Exhibit 4, p.3) and I agree;
(c)In mid-2022, the mother wanted a domestic violence worker to look at some of the father’s texts messages to her, but the police declined saying it did not meet their threshold; and
(d)In late 2022, the mother said the father sent her a “creepy […] doll” but accepted in cross-examination, that neither the supplier of the doll nor the delivery entity had any records connected to the father.
The mother agreed that things had settled down between them since the mutual domestic violence orders of late 2022.
Both the mother’s treating psychologist, Ms G and the Single Expert psychologist, Dr H, were asked if the mother’s mental health symptoms and diagnoses were consistent with being the victim of coercive control at the hands of the father.
Ms G thought that the mother’s symptoms and diagnoses could be consistent with coercive control by the father of the mother. The problem with this is that it is also Ms G’s evidence that each violent partner prior to the father created a compounding effect on the mother in terms of her presentation. In other words, it is hard to sheet the symptoms, said to be consistent with coercive control, home to just the father.
Dr H was far more cautious in linking the mother’s symptoms and diagnoses to coercive control.
In any event, those opinions about linkage between symptoms and diagnoses, with coercive control, require a factual basis. If the factual basis of coercive control is not made out, then the opinions fall away. As said in Fortnum & Fortnum (No. 3) [2008] FamCAFC 133:
115.For the reasons which Heydon JA explained in Makita, if the trial Judge did not accept the substance of Ms Fortnum’s allegations of fact, the foundation for attaching weight to Ms W’s expert opinion evidence that Ms Fortnum’s presentation was consistent with her allegations of abuse would have dissolved…
The mother’s counsel, candidly and appropriately, conceded I may struggle to make positive findings of coercive control against the father as objectively defined in s 4AB of the Act. I accept the mother subjectively considers herself a victim of coercive control at the hands of the father, but I accept her Counsel’s proper submission that it would be hard to meet the objective standard of coercive control.
The father says he was the victim of family violence and abuse, alleging the mother often “denigrated, rebuked, insulted and taunted me, as well as constantly making me feel like I was never good enough” (Father’s affidavit filed 8 January 2024, paragraph 190). His affidavit goes on to set out particulars of alleged abuse including in early 2021, late 2021, early 2022 and mid-2022.
Appropriately, given the father’s week about proposal, there was little, if any, cross-examination of the mother about the father’s allegations against her. Consistently, I was not asked to make a positive finding of violence and abuse against the mother, and will not.
The father however confirmed in cross-examination that he likened himself to Johnny Depp and the mother “crying wolf” about her allegations like, he said, Amber Herd. His posts about that, and other comments of a private and intimate nature, which he made to a third party, would more likely than not have been hurtful to and belittling of the mother.
He also sent what could be called a detailed character assassination of the mother to the maternal grandmother which was completely unnecessary. I do not accept the father saying the maternal grandmother already knew the sordid details he provided – if she did, his email was unnecessary.
After the mother put awful, emotionally charged material in the father’s letterbox, the father returned serve by placing similarly awful material in the mother’s letter box. The father expressed regret for doing so. Neither party bathed themselves in glory with their “hostile, inflammatory and immature” actions to use the words of the father. The father also regretted saying poor things of and to the mother, including his email to her of 11 March 2022. The father agreed his email was embarrassing and expressed remorse. With hindsight, the father agreed his message to the maternal grandmother was cheapening of the mother. He again regretted that but only apologised when asked about any apologies in the witness box.
Family violence – discussion
I accept the parties have the benefit of mutual domestic violence orders made by consent. Section 51(1) of the Domestic and Family Violence Protection Act 2012 (Qld) provides a consent order is only proof of the requisite domestic relationship.
Both parties have behaved badly to the other, as demonstrated by the examples above, but this was particularly in and around what was for both parties, a traumatic event. Indeed, I stood the matter down when counsel for the ICL embarked upon a deeply personal and irrelevant cross-examination of the father, which caused both parents unnecessary distress.
Bad domestic behaviour, particularly around a deeply stressful event, is not the same as domestic violence and abuse. I make no positive findings of family violence against either party.
Further proceedings
Of course it would be preferable to make orders least likely to lead to further proceedings, but that is a matter in the parties’ hands.
The mother’s Rice & Apslund approach to orders if she remains in or returns to Australia does not comfortably sit with finality.
PARENTAL RESPONSIBILITY
The father and the ICL propose an order for equal shared parental responsibility if both parents are in Australia. The submission for the mother was that she was so intent upon leaving Australia with or without the child, that the order was unnecessary. I was told that if the mother changed her mind down the track, and comes back to Australia, then if the parties did not agree on the allocation of parental responsibility, “that is a potential Rice & Asplund threshold argument to have at that time”.
The parties were also agreed that if the child stayed in Australia with the father and the mother left, then he ought have sole parental responsibility. The inverse was agreed to, being that if the mother and child relocated to New Zealand, then the mother have sole parental responsibility. The basis for both proposals was practicalities.
I accept the ICL’s and father’s position that if both parents are in Australia, then equal shared parental responsibility is in the child’s best interest. I do so because it is plain to me that each parent offers much of benefit to the child and on that basis, each ought participate in major long-term decision making. I also do so to avoid further litigation if the mother remains or returns and the parents cannot agree.
I also accept the proposition that equally shared parental responsibility by two parents in two different countries would be impractical. On that basis, I conclude that it would not be in X’s best interests for an equal shared parental responsibility order to be made if the parents are in different countries.
DISCUSSION
There was no realistic suggestion that the father could move to New Zealand. The choices then are:
(1)X live with the mother and father in City C; or
(2)X live with the mother in New Zealand, and have some form of time with the father.
The mother says if she is not successful on (2), then the child will live with the father and have some form of time with her. This was not put by the mother as a proposal, but was said to be the consequence for her and the child if I did not allow the second option. The father’s counsel described it as “a gun held to the head of the Court”.
The Report writer, Mr F said at paragraph 67:
67.In weighing the consequences for [X], it is difficult to accept that a unilateral benefit passes to her under the options noted.
(Family Report dated 10 January 2024, paragraph 67)
He also agreed in cross-examination that the child’s situation would not be improved if the child was in New Zealand with the mother and therefore absent regular physical time with the father, or, in City C with the father and therefore absent regular physical time with the mother.
Mr F also indicated that the problem solving capacity of the parents when living in close proximity and the child having regular contact with each, would be very different if living in different countries - “there is a complexity to that”.
The matters that weigh in favour of X remaining in City C living in a week about with the mother and father are:
·X will continue in the stable situation she has known since the May 2022 orders, if not earlier, living regularly with both parents and their regular involvement with her;
·X’s environment will remain the same;
·Both parents own homes in City C which must be familiar surroundings for the child;
·I have no doubt X will continue to prosper and thrive with both parents having active and loving involvement in her life. The parents acknowledge this by agreeing to week about if both are in Australia (albeit a concession not a proposal by the mother);
·X will experience regular involved time with the father, and mother if she stays, and will have the opportunity of spending time with members of the paternal family;
·Problem solving between the parents would not be as hard than if living in different countries;
·The child will have her feet directly in the ground of her Australian heritage and culture; and
·The evidence of the Family Report writer is that this is in her best interests.
The disadvantages to the child of remaining in City C, if the mother (contrary to her position) stays are:
·The mother will continue to feel isolated and removed from her family and country of origin, which may, she says, impact upon her parenting capacity;
·She will continue to feel, subjectively, controlled by the father;
·The mother would be subjugating her own interests and desires (see AMS v AIF at 191–192 per Gaudron J, 207–208 and 224 per Kirby J; U v U);
·The mother and child will not have a close and regular connection with the wider maternal family;
·X will not experience regular involved time with the mother and maternal family; and
·The child will not have her feet directly in the ground of her New Zealand heritage and culture.
The matters that weigh in favour of the child moving to New Zealand and living with the mother there are:
·The mother will have the support of her family, both practical and emotional, which is not available in City C;
·It would give support for the mother’s choice and, she would say, enhance her capacity to parent the child. In turn, it was said that can only benefit the child;
·New Zealand and the maternal family are not unknown quantities for the child; and
·The child would have direct experiences of her New Zealand culture.
The disadvantages of the child relocating to New Zealand with the mother are:
·The reduction in experiential, regular time and activities with the father;
·The reduction in time and activities with members of the paternal family;
·Regular electronic communications do not permit physical affection and play;
·A child X’s age would be easily distracted from electronic communications;
·The costs involved in facilitating time between the child and father;
·The time the child would be traveling, being the better part of two days each way with shorter holidays usually only being 14 days duration;
·The risk the mother will not actively foster and facilitate the child’s relationship with the father;
·The “complexities” (per Mr F) of parental problem solving from afar; and
·The potential loss of connection with her Australian heritage and culture.
The father also questioned the education system in New Zealand (Father’s affidavit filed 8 January 2024, paragraphs 143–147), but that is not a path I will follow on no more than “concerns” and speculation on the part of the father.
For completeness, there are no advantages to the child if relocation of the child is not permitted and the mother goes anyway. All I see on that proposal is downside for the child. I accept the father’s observation that the child would be “devastated” (Father’s affidavit filed 8 January 2024, paragraph 155). I accept what the mother told the Report writer that “‘it would be extremely hard for her and devastating for her to lose mum’. She considered that [X] might think she had abandoned her” (Family Report dated 10 January 2024, paragraph 43).
The child’s memory of parenting arrangements would be of relatively equal time. I very much doubt she would remember the father’s 11 month absence in the child’s first two years. I doubt the child would have much of a memory of her parents together. The mother’s prioritisation of the child’s loss of her, as opposed to the child’s loss of the father does not satisfy me that the mother actually places value on the child’s relationship with her father or has an appreciation of the loss to the child of the father. Her acceptance of the loss to the child in cross-examination was not one that came easily to her.
In turn, that lack of insight does not bode well for the mother’s facilitation of time and memory of the father should the mother be permitted to relocate with the child. Her preference for the child to stay with her friend during the trial, as opposed to the paternal grandmother does not assist in her persuading me she would.
Equally, it is hard to see how the compounding effect of the mother’s traumas will be resolved by a move to New Zealand with or without the child. The traumas will follow her. I also accept the Report writer’s opinion that the mother’s resilience if she remains in City C will likely outweigh the speculative prospect of a mental health deterioration. The mother has been able to access supports when in City C and I am satisfied she will do so if needed.
Standing back, the advantages and disadvantages of the two parenting proposals clearly favour X having both of her parents in her life on a regular and experiential basis. That can only occur if the parents are in the same location. There was no serious suggestion by the mother that the father could relocate to somewhere in and around where she proposes to live in New Zealand. X’s best interests are served if both parents remain in City C and she enjoys the week about arrangement the parents agree upon, albeit accepting that this concession on the mother’s part is not her proposal. On a week about, X would remain in the stable situation in familiar environs with regular time with both parents, all of which she has enjoyed for a number of years.
If the mother remains in Australia, I accept she will not have the physical support of her family and may feel subjectively controlled by the father. Both X and the mother will not have direct daily access to their culture. However, X has thrived and prospered having both parents in her life notwithstanding the mother’s challenges.
The mother’s case is clear – she is going with or without the child. This is not one of those rare cases where I would consider making a mandatory order requiring the mother to stay in Australia.
Conversely, I do not consider X moving with the mother to New Zealand promotes her best interests. The disadvantages to the child outweigh the advantages, which are listed above.
Further, I am also not satisfied the mother’s move to New Zealand will resolve the traumas she feels. Even with sole parental responsibility in her favour, the mother will still have to consult with the father over major long-term decisions and navigate international travel arrangements. None of that will relieve her of the burden she feels in dealing with him. Similarly, when the mother says the father can spend time with the child in New Zealand, then she will have to navigate that in a rural setting which sounds even smaller in population than City C. The mother’s idea that the father could stay on a family property within the maternal family sprawl of properties sits at odds with her fears of him.
I am also not satisfied the parents have the ability to navigate differences and arrangements across borders. I accept the Report writer’s opinion that:
64.The parental relationship has no capacity to resolve any issue without outside intervention. It has been irreparably damaged by past events, lacks any trust, and there are numerous hurdles to navigate given [X’s] young age.
65. Future problems will be difficult to reconcile in different jurisdictions and I would assess the risks to any arrangement failing, as high in such circumstances.
(Family Report dated 10 January 2024, paragraphs 64–65)
If the mother goes to New Zealand notwithstanding, then that will be her choice, knowing as she must the considerable loss that will cause the child and devastation for herself.
Disposition
The parties are by and large agreed on orders if the mother leaves Australia with or without the child. I will make the orders that cover the eventuality if the mother leaves without the child. They are agreed and I am satisfied they are the best that can be realistically and practically achieved for the child given the distances and travel involved.
The ICL and father were agreed on orders if the mother remained. As said, the mother accepted in cross-examination that the current 8-6 arrangement (five nights in one week, one in the other) would be better as a block and accepted week about would also be appropriate. That was a concession, not a proposal. The father and ICL also propose equal shared parental responsibility, and I have already referred to the mother’s Rice & Asplund stance with respect to equal share parental responsibility.
I will also make the orders referrable to both parents being in City C. It is plain to me that X’s best interest will be served by having both parents in her life on a regular and physical basis. Despite the adult’s views of each other, X is thriving in the close to equal time arrangements she has enjoyed since and before the May 2022 Orders. The Family Report writer describes a delightful child, which is a credit to both parents. I am also satisfied that the sharing of holidays is something of benefit to X too.
I will also make an order for equal shared parental responsibility if the mother stays and have already given some reasons about that, including that both parents have much to offer their child in terms of input on major long-term issues. I also do not see the benefit to anyone of the mother trying her hand with a Rice & Asplund application if she changes her mind and stays in Australia or subsequently returns. I do not consider it in X’s best interests to have the potential for further litigation over parental responsibility, especially when the father proposes same; s 60CC(3)(l).
Exhibit 6, being the consolidated version of the parties’ competing proposal and apparent agreements was not a straightforward document. It contained orders in six different colours to denote who proposed what, and who agreed with what, and was, at times, internally inconsistent. For example, agreed Order 3 in Exhibit 6 required the parties to use the “Talking Parents” App for parental communications. However, agreed Orders 49-51 referred to using something called “AppClose”. In that instance, I will make the orders but use Talking Parents as that is what the parties are using now and is required by the domestic violence order. Further, Exhibit 6 has four weeks notice for overseas travel in one order and eight weeks in another. I have made the orders consistent at eight weeks because that is enough time to seek relief through the Court if there is a problem.
The parties also had double ups on the gist of passport orders and notification orders. They also had two sets of largely overlapping injunctions, which I have brought into the one order. One of the dispute resolution orders was unnecessary as already being covered by earlier orders or the allocation of equal shared parental responsibility.
As for passports, the proposed consent Order 37 (Exhibit 6) had the child’s passport being held by the parent with whom the child is living. That will obviously be the father if the mother relocates to New Zealand without the child, but a cause for dispute if the mother stays and the child enjoys a week about arrangement. I will allow the father to hold the Australian passport and the mother the New Zealand one. That means each should be able to facilitate the child’s travel under the orders without having to mail passports across borders.
I will do the best I can on Exhibit 6 to reflect where the parties were apart and where they were agreed in intent, if not drafting. The parties will have liberty to apply on the interpretation of the orders.
I will not however make proposed Order 20 (Exhibit 6) in the terms drafted, which concerns the costs of flights if the mother is in New Zealand without the child. As drafted, the mother would be responsible for paying the costs of flights from City B to City C, and the father responsible for paying for the child’s flights from City C to City B. I will switch the payments so the mother will pay for the child to come to her, and the father pay for the child to return to him. In that way, each parent has incentive to find the funds and buy the ticket.
The ICL and father also proposed some orders about counselling for each of the parents. The mother said she “agreed to the concept but not the words”. It will be useful for the parents to each engage with psychologists to learn better skills and more mature ways to deal with communication, anxiety and co-parenting issues. Whether the parties are in the same country or not, there is one person who will benefit from the parents learning some new, more mature and positive techniques – X.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 26 March 2024
0
10
3