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…
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CaseChat Overview and Summary
The central legal issue was whether Ms Annick should be permitted to relocate to New Zealand with or without X, and if so, what parenting arrangements should be put in place. The court had to consider the best interests of X, taking into account factors such as the child’s current thriving situation, the impact of relocation on the child, and the parents’ ability to co-parent effectively. The court also had to determine the appropriate parenting arrangements, including the allocation of parental responsibility and time-sharing arrangements, both in the event that the mother relocates to New Zealand and if both parents remain in Australia.
The court dismissed the mother's application to relocate to New Zealand, finding that it was not in the best interests of X to move to another country. Instead, the court ordered that if the mother relocates without the child, the child would live with the father and he would have sole parental responsibility. In the event that both parents remain in Australia, the court ordered that the father and mother share equal parental responsibility and that the child would live with each parent on a week-about basis during the school term and have a pre-agreed schedule for school holidays. The court also set out detailed provisions for communication, travel, and special occasions to ensure the child maintains a strong relationship with both parents.
In conclusion, the court's decision reflects a careful consideration of the best interests of the child, prioritising stability and a robust co-parenting relationship, while also addressing the potential challenges posed by international relocation.
Orders
Orders of the court
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.
Background
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Evidence
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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