Marijke and Turner

[2018] FamCA 985

FAMILY COURT OF AUSTRALIA

MARIJKE & TURNER [2018] FamCA 985

FAMILY LAW – CHILDREN – Child related proceedings – International relocation application – Where the mother seeks orders that she be allowed to relocate the child’s residence to The Netherlands – Where the father has not filed any material in response to that application – Where the father has failed to attend Court events for some time – Where the father has not spent time with the child since April 2016 – Where the father has not communicated with the child since December 2016 – Where the father has not sought to enforce interim orders for him to spend time with the child – Where the mother was born in The Netherlands – Where the mother and the child regularly travel to The Netherlands – Where the extended maternal family and many of the mother’s friends live in The Netherlands – Where the mother’s partner lives in The Netherlands – Where the child has expressed a strong desire to relocate to The Netherlands – Where the child has expressed a disinclination to have a relationship with the father at this time – Where the mother’s proposed orders allow for the child and the father to re-establish their relationship at some future point – Court finds that it is in the child’s best interests for her to be permitted to relocate to The Netherlands – Orders made in accordance with the mother’s application.

Family Law Act 1975 (Cth) ss. 60CC, 61DA, 65DAA

Babcock & Waddell (2018) FamCA 276
Re: TC and JC (Children: Relocation) [2013] EWHC 292

APPLICANT: Ms Marijke

RESPONDENT: Mr Turner

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 779 of 2007

DATE DELIVERED: 14 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 14 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Derham Houston Lawyers

SOLICITOR FOR THE RESPONDENT: Self-represented, no appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

THE COURT ORDERS THAT:

1. Final parenting orders be made in accordance with the mother’s proposed minute of order, with the relevant amendments, as follows:

   1.All previous parenting order relation to the child, born … 2005 be discharged.

   2.The mother have sole parental responsibility for the child.

   3.The child live with the mother.

   4.The mother shall be permitted to change the child’s place of residence to The Netherlands.

   5.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother is permitted to take the child to a place outside of the Commonwealth of Australia as and from 14 November 2018.

   6.The child spend time with the father in The Netherlands, as agreed between the parties, in consultation with the child.

   7.The mother is to advise the father (which may be by SMS message) of the child’s residential address in the Netherlands, within 24 hours of the child’s arrival in the Netherlands.

   8.Each party notify the other (which may be by SMS or email) in the event the child requires specialist medical treatment of requires hospitalisation.

   9.The mother authorise the child’s medical treating professionals to discuss the child’s health with the father.

   10.The mother authorise any school that the child attends to communicate with or provide information to the father regarding the child’s schooling should he request it.

   11.Within seven (7) days, the parties are to advise the other of their residential address, email address and their mobile telephone numbers and keep the other advised of any changes to these details as soon as reasonably possible, in the event of any changes to these details.

2. The matter be otherwise removed from the active pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 779 of 2007

Ms Marijke

Applicant

And

Mr Turner

Respondent

EX TEMPORE JUDGMENT

1. These are parenting proceedings in relation to the child, born in 2005 (“the child”), who is now 13 years of age.  Most relevantly, for the purpose of these proceedings, the mother seeks orders permitting her to relocate the child’s residence to The Netherlands, being the mother’s birthplace. 

2. The matter is proceeding on an undefended basis, in circumstances where the Court is aware that the father has been given notice of these proceedings.  The Court has received communication from the father in respect of these proceedings.  The commencement of the proceedings today has been deferred for a period of approximately 25 minutes in anticipation of the father’s attendance.  The matter has been called outside the body of the Court four times, and there is no appearance by or for the father.  The father has not filed any material for some time, despite orders being made for him to do so.  Accordingly, I have determined this matter on the basis of information provided by the mother and the Independent Children’s Lawyer. 

3. In this matter, final parenting orders were made on 7 December 2009 (“the consent orders”), as follows:

   1. All previous orders are discharged.

   Parental Responsibility:

   2. The parties shall have:

   (a) equal shared parental responsibility for the decisions concerning the long term care, welfare and development of the child born … 2005; and

   (b) sole responsibility for the decisions concerning the day to day care, welfare and development of [the child] whilst [the child] is in his or her care.

   FATHER’S TIME WITH [THE CHILD]:

   Until [the child] Commences School:

   3. Until the [the child] commences school [the child] shall live with the father as follows:-

   (a) Week 1: From 5.00 p.m. Friday to 10.00 a.m. Tuesday and each alternate week thereafter; and

   (b) Week 2: From 9.00 a.m. Monday to 10.00 a.m. Tuesday and each alternate week thereafter.

   (c) These orders shall commence on Monday 14 December 2009 which should be taken to be the commencement of week 2.

   On commencement of School:

   4. Upon [the child] commencing school, [the child] shall live with the father as follows:

   (a) Week 1 of the school term: From the conclusion of school on Friday to the commencement of school on Tuesday and each alternate week thereafter;

   (b) Week 2 of the school term: From the conclusion of school on Monday to the commencement of school on Tuesday and each alternate week thereafter;

   (c) or as otherwise agreed in writing.

   During School Holiday Periods:

   5. Until the commencement of NSW gazetted 2013 school year, [the child] shall live with the father:

   (a) For one half of all gazetted NSW term school holiday periods;

   (b) In the December/January school holidays for each alternate week from 5.00 p.m. Friday to 5.00 p.m. the following Friday.

   6. From the commencement of the NSW gazetted 2013 school year, [the child] shall live with the father for one half of all school holidays and in default of agreement the second half in odd numbered years and for the first half in even numbered years AND for the purpose of calculation such holiday time shall be deemed to commence on the day that school is suspended and to conclude on the day prior to the commencement of the next term.

   Christmas Day:

   7. For Christmas 2009, [the child] will live with the father from 9.00 a.m. on Christmas Eve until 5.00 p.m. Boxing Day.

   8. In the event that [the child] has not commenced school at all in 2010, pursuant to Order 12, for Christmas 2010, [the child] will live with the father from 9.00 a.m. on 23 December until 9.00 a.m. Christmas Eve and that [the child] will then be returned to the mother where any time allocated to the father subject to these orders will be suspended until 5.00 p.m. Boxing Day.

   9. Subject to order 16, [the child] shall live with the father as agreed in writing between the parents or failing agreement as follows:

   Easter:

   (a) In odd numbered years: from 5.00 p.m. on Easter Saturday until 5.00 p.m. on Easter Monday; and

   (b) In even numbered years:  from 9.00 a.m. on Good Friday until 5.00 p.m. on Easter Saturday.

   [The child’s] Birthday:

   (c) In odd numbered years: from 9.00 a.m. on the day before [the child’s] birthday until 9.00 a.m. on the day of [the child’s] birthday;

   (d) In even numbered years: from 9.00 a.m. on the day of [the child’s] birthday until 9.00 a.m. on the following day.

   Father’s Day:

   (e) Each year on Father’s Day from 9.00 a.m. to 5.00 p.m.

   General:

   (f) The time the father spends with [the child] is subject to order 27 below.

   MOTHER’S TIME WITH [THE CHILD]:

   10. [The child] shall live with the mother at all other times, including the following times when the father’s time is otherwise suspended:

   Mother’s Day:

   (a) Each year from 9.00 a.m. to 5.00 p.m.

   Easter:

   (b) In even number years: From 5.00 p.m. on Easter Saturday until 5.00 p.m. on Easter Monday; and

   (c) In odd numbered years: from 9.00 a.m. on Good Friday until 5.00 p.m. on Easter Saturday.

   Sinterklaas 5 December

   11. [The child} shall spend time with the mother to celebrate Sinterklaas on 5 December each year as follows and the father’s time with [the child] is suspended:

   (a) School day: Where 5 December falls on a school day from after school on 5 December until commencement of school the next day or 9.00 a.m. if the next day falls on a weekend.

   (b) Weekend: Where 5 December falls on a Saturday from 3.00 p.m. Friday until 12 noon on the Sunday or where 5 December falls on a Sunday from 4.00 p.m. on Saturday until the commencement of school on Monday.

   (c) Dutch Association celebration: where this event falls on a weekend, from 9.00 a.m. until 5.00 p.m. on either the Saturday or the Sunday.

   School:

   12. [The child] shall commence school in 2010 at the commencement of first term or so soon thereafter as a vacancy for [the child] becomes available and each parent shall do all things and sign all documents necessary to enrol [the child] in the [W School] or any other such school as may be agreed by the parties in writing.

   13. Both parents shall do all things to ensure that [the child] is enrolled and attends at a Dutch school in Australia of the mother’s choosing for a minimum of two hours per week, and these lessons shall coincide with periods that the child is in the mother’s care.

   Parents’ Birthdays and Special Occasions:

   14. [The child] shall spend time with her mother and father:

   (a) On their respective birthdays, as agreed in writing and failing agreement for no less than four hours; and if such day falls on a school or day care day, from after school or day care to the commencement of school or day care the following day;

   (b) On special family celebrations important to either parent as agreed between the parties.

   Contact Changeover:

   15. For the purpose of these orders “changeover” is to occur at school or pre/school/day care and if [the child] is not at school, preschool or day care then:

   (a) The mother shall deliver [the child] to McDonalds at [Suburb S] at the commencement of [the child’s] time with the father and the father shall deliver [the child] to McDonalds at [Suburb D] at the commencement of [the child’s] time with the mother; or

   (b) Changeover at the end of time spent with a parent shall be reverse of (a) and the mother shall deliver [the child] to McDonalds at [Suburb S] at the end of [the child’s] time with her and the father shall return [the child] to the mother at the end of [the child’s] time with him by delivering [the child] to the mother at McDonalds at [Suburb D]; and

   (c) Or otherwise as agreed between the parties.

   Mother’s Travel to Netherlands:

   16. [The child] shall spend time with the mother as follows for the purpose of travel to The Netherlands:

   (a) Up until [the child] commences school:  For 2 months each calendar year provided that same does not occur over Christmas as specified in order 5, 6, 7 and 8 when [the child] would otherwise be spending time with the father, unless otherwise agreed between the parties in writing.

   (b) From the time [the child] commences school: The mother shall be permitted to travel with [the child] to The Netherlands for a consecutive period of up to five (5) weeks in any one calendar year period in either April to October or the period of December to January;

   (c) If the mother elects to travel in accordance with Order 16(b) she is to ensure that the period of travel includes either April or June school holidays or if the mother elects to travel in the December/January period then such travel is not to occur during a period where [the child] would be living with her father in accordance with Order 7, 8 or 9 herein.

   (d) In the event [the child] travels in accordance with this order, she shall be provided make up time with the father for those periods missed as agreed, or if not agreed, by way of additional consecutive weekends and blocks of holiday time equal to the weekends and holiday time the father has foregone commencing on [the child’s] return.

   17. In the event, and unless otherwise agreed, if the mother travels to The Netherlands at any other time [the child] shall live with her father for that period.

   18. For the purpose of Order 16 and 17, the mother shall meet all costs associated with her and [the child’s] overseas travel.

   Communication:

   19. Both parties shall be able to communicate with [the child] by telephone at all reasonable times and by agreement, and in the absence of agreement between 6.30 p.m. and 7.30 p.m. on days when [the child] is not living with them and the parent with whom [the child] is not living with is to initiate the phone calls and the parent with whom [the child] is living to ensure that [the child] can be readily contacted at such times.

   20. Both parents shall be able to communicate with [the child] by electronic communication including Skype/webcam as agreed and at all reasonable times as requested by [the child] including on her birthday and on Christmas Day.

   Sydney Metropolitan Area:

   21. Each parent is hereby restrained by injunction from doing any act or thing to cause or permit [the child] to live outside the Sydney Metropolitan Area without first obtaining the consent in writing of the other parent or the order of the Court.

   Overseas Travel:

   22. Subject to the above orders, each parent is hereby restrained by injunction from removing and/or causing to be removed and/or allowing and/or attempting to remove [the child] from the Commonwealth of Australia or allowing any third party so to do without first obtaining the consent in writing of the other parent or order of the court.

   23. For the purpose of any overseas travel in accordance with these orders, or otherwise as agreed between the parties, the parent travelling overseas with [the child] shall notify the other parent of all travel arrangements, including providing a copy of all flight details and a complete travel itinerary and shall at all times keep the other parent advised of all particulars in relation to [the child’s] address and contact telephone number and shall enable the other parent to communicate including by Skype and webcam with [the child] at reasonable times and on no less than one occasion each week for the duration of the overseas travel period.

   Residential Address and Telephone Number:

   24. Each parent shall forthwith provide the other with any current residential address and contact telephone number for [the child], and shall promptly notify the other parent in the event that any of such details change.

   Injury or Illness:

   25. Each parent shall notify the other, as soon as possible and in any event within 12 hours of any serious injury or illness suffered by [the child] whilst in their care.

   Non Denigration

   26. Each parent is hereby restrained from denigrating the other parent or member of that parent’s household in the presence or hearing of [the child] or permitting any other person so to do.

   27. The time that [the child] spends with the father pursuant to these orders is conditional upon the father:

   (a) Not consuming alcohol or using illicit drugs for at least 12 hours before the father is due to spend time with [the child], and the father shall refrain from consuming any alcohol during periods of time in which [the child] is in his care pursuant to these Orders;

   (b) Not smoking tobacco or any other substance in the presence of [the child] or in the place where [the child] is staying or residing or in a motor vehicle in which [the child] is travelling.

   28. For the purpose of both parents spending time with [the child] pursuant to these orders, they shall be permitted to travel with [the child] in Australia or overseas on providing to the other parent at least 28 days’ notice of their intention so to do.  If a parent does travel they shall provide to the other parent a travel itinerary and contact details for [the child].

   29. For the purpose of the father spending time with [the child] pursuant to these orders he shall be permitted to travel with [the child] in Australia or overseas on providing to the mother 28 days’ notice of his intention to do so.  If the father does so travel he shall provide to the mother a travel itinerary and contact details for [the child].  The mother shall provide to the father the child’s current passport to enable the child to travel with the father and the father shall return the child’s passport to the mother at the conclusion of the travel.

   30. Either parent may permit any other adult member of their extended family to travel with [the child] within the Commonwealth of Australia whist [the child] is otherwise in the care of that parent.

   31. The Mother shall forthwith authorise any child care centre, pre-school or school [the child] may attend to provide to the Father photocopies of all reports, newsletters and announcements of any activities of the centre or of the school or otherwise pertaining to the education of [the child], in English if possible, and if none have been made available in writing, then the Mother shall provide written particulars thereof, in English, including by email if available, of such reports and/or activities to the Father within 3 days of such documents or particulars being received by the Mother from the centre or school and the Mother shall authorise the staff members at any child care centre, pre-school and school that [the child] may attend to discuss [the child’s] progress with the Father.

   32. Each party shall attend a Parenting after Separation Course as nominated by the Independent Children’s Lawyer.

   33. Exhibits and documents on subpoena may be returned after the expiration of 65 days.

   34. Pursuant to s.65DA(2), and s.62B:

   (a) The particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders; and

   (b) The legal representatives of the parties are requested to assist in explaining to their clients:

   (i) the obligations that the orders create; and

   (ii) the consequences that may follow if a person contravenes an order.

4. Until April 2016, the child spent time with the father, generally, in accordance with the consent orders.  However, the child has not spent time with the father since 9 April 2016, and the father has not taken steps to enforce the consent orders. 

5. The evidence presented by the mother, in that regard, is to the effect that the father’s household has been one characterised by alcohol abuse and domestic violence.  The evidence contained in the mother’s Affidavit filed on 10 October 2018 has not been challenged, and on that basis, in circumstances where that evidence is plausible, I accept the mother’s account of the nature of the father’s household.

1. On 16 June 2016, the mother filed an Initiating Application seeking that the consent orders be discharged and that she be permitted to relocate the residence of the child to The Netherlands.  On 11 September 2016, the father filed a Response and supporting Affidavit, in which he sought the dismissal of the mother’s application and that immediate “make up” time for the child with him be provided.  The father has not appeared in these proceedings, with a view to presenting that evidence.

2. On 4 December 2016, the child last spoke to the father by telephone.

3. At the hearing, the mother relied upon the following documents:

   a)Notice of Child Abuse, Family Violence, or Risk of Family Violence filed on 27 June 2016;

   b)Her Affidavit filed on 10 October 2018; and

   c)Affidavit of Mr T, the mother’s partner, filed on 10 October 2018.

4. I have also had regard to:

   d)Affidavit of Mr E filed by the Independent Children’s Lawyer on 19 October 2018, which sets out the views of the child; and

   e)Child Responsive Program Memorandum of Mr L dated 15 December 2016. 

5. The orders sought by the mother, as amended at the hearing, are set out in her case outline document (Exhibit “M-1”), as follows:

   a. All previous parenting order relation to the child born … 2005 be discharged;

   b. The mother have sole parental responsibility for the child;

   c. The child live with the mother;

   d. The mother shall be permitted to change the child’s place of residence to The Netherlands.

   e. Pursuant to s 65Y(2) of the Family Law Act, the mother is permitted to take the child born … 2005 to a place outside of the Commonwealth of Australia as and from 14 November 2018.

   f. The child spend time with the father in The Netherlands once per year for a period not to exceeding 28 days provided that the father gives the mother 2 months’ written notice of his intention to exercise such time and provides the mother with his travel itinerary and details of his travel with The Netherlands with the child during such periods; as agreed between the parties in consultation with the child,

   g. The mother is to advise the father (which may be by SMS message) of the child’s residential address in the Netherlands within 24 hours of the child’s arrival in the Netherlands.

   h. The child born … 2005 be permitted to travel internationally with the mother notwithstanding the mother does not have the father’s consent to the child travelling internationally;

   i. That each party notify the other (which may be by SMS or email) in the event the child requires specialist medical treatment of requires hospitalisation;

   j. That the mother authorise the child’s medical treating professionals to discuss the child’s health with the father;

   k. That the mother authorise any school the child attends to communicate with or provide information to the father regarding the child’s schooling should he request it;

   l. Within seven days of the date of these orders the parties are to advise the other of their residential address, email address and their mobile telephone numbers and keep the other advised of any changes to these details as soon as reasonably possible in the event of any changes to these details.

6. The relevant law in these proceedings was summarised in a decision that I gave in the matter of Babcock & Waddell (2018) FamCA 276 at [126] to [129], as follows:

   126. In Sayer & Radcliffeand Anor (2012) 48 Fam LR 298 at [48], the Full Court said:

   A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80] – [81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

   127. However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U (2002) 211 CLR 238 at [80].

   128. In terms of approach, in Malcolm & Monroe and Anor (2011) FLC 93-460 at 85,515, the Full Court said:

   We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.  [Emphasis added].

   129. In Re: TC and JC (Children: Relocation) [2013] EWHC 292 at [11], Mostyn J suggested that undertaking that task might be assisted by asking the following questions:

   a)Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?

   b)Is the application realistically founded on practical proposals both well researched and investigated?

   c)What would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?

   d)Is the other parent or person's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?

   e)What would be the extent of the detriment to him and his future relationship with the child were the application granted?

   f)To what extent would that detriment be offset by the extension of the child's relationships with the applicant family and homeland?

7. Essentially, those principles prescribe that parenting proceedings involving an application for relocation are to be determined in the same manner in which any other parenting application is to be determined, so that the central issue is a determination as to what is in the best interests of the child. 

8. I will now address the questions set out by Mostyn J in Re: TC and JC (Children: Relocation) [2013] EWHC 292, as set out above.

9. Firstly, I am satisfied that the mother’s application is genuine.  The mother’s partner, as well as many of her friends and family members, live in The Netherlands, and it is entirely understandable that she would want to relocate there to be closer to them and to return to her place of birth.

10. Secondly, I note that at paragraphs 13 to 40 of her Affidavit, the mother sets out the practical elements of her proposals for the child’s residence to be relocated to The Netherlands, as follows:

    13. I want to live in [university town] in The Netherlands with [the child].

    14. I want [the child] and me to live with [Mr T] [the mother’s partner].

    15. [Mr T] lives in [university town] which is 17 minutes to [a major city] by car and 23 minutes by train. [It] is a University town with about 123,000 people in it.

    16. [Mr T] has lived in Australia. He lived in Australia from May 2006 to September 2008.

    17. [The child] has known [Mr T] since she was about two years of age.

    18. [Mr T] lives on a … boat that was converted into a modern home. This type of dwelling is considered very aspirational real estate in The Netherlands.

    19. [Mr T’s] boat is [23 meters and] has three bedrooms and two bathrooms.

    20. The boat is moored at [the university town], which according to the council of … is [Mr T’s] fixed address.

    21. Every year, [the child] and I live with [Mr T] on his boat. The boat is as big as a house and is a most comfortable home for the three of us.

    22. [Mr T] is a [commercial] trader. [Mr T] used to live in Australia but was unable to continue the business here and now runs his own business in [The Netherlands].

    23. [Mr T] and I promised each other in December 2009 to get married as soon as we can live together.

    24. I speak to [Mr T] at least twice daily on the telephone or via Skype.

    25. [Mr T] travels to Australia once a year and I travel to The Netherlands once a year. [Mr T] and I spend about ten weeks a year together.

    26. From what I have observed, [the child] has a good relationship with [Mr T]. I see [the child] and [Mr T] speaking via Skype and telephone regularly.

    27. When [the child] and I are in The Netherlands, I see that [the child] and [Mr T] get along very well and [the child] loves living on the boat and spending time with [Mr T].

    28. My mother, [Ms B Marijke], lives in [Town Y]. [Town Y] is about 45 minutes by car from [the university town].

    29. My father passed away in 2007.

    30. Since 2015, my mother has been in a relationship with [Mr P]. [Mr P] is [retired], widowed and has two children and six grandchildren.

    31. I understand that [Mr P] sold his property and moved in with my mother in 2017.

    32. My older sister [Ms R] and her husband [Mr R] live in [Town Y] with their three children aged 18, 15 and 12. I have a very close relationship with my sister and I believe [the child] is very close to her cousins. [Ms R], [Mr R] and their children are bilingual.

    33. I have no relatives in Australia

    34. I propose that [the child] attend a school in [university town] known as [K School] is located at Q Street in [university town]. [K School] offers bilingual education (being Dutch and English) and [the child] would finish school with the International Baccalaureate IB. VHL is only 1.6km from where [the child] and I would be living. I propose [the child] ride her bicycle to and from school each day which would only take [the child] about five minutes.

    35. The start of the Dutch school year in The Netherlands this year was 26 August 2018.  Students then have a two week break over the Christmas period and school resumes on 6 January 2019.

    36. The 2019 school year in The Netherlands commences on 1 September 2019.

    37. I believe it is best for [the child] to be start school in The Netherlands as soon as possible. [the child] is currently in year 8 in Australia. [The child] will be in 'second year' in The Netherlands.

    38. My first priority when I get to The Netherlands will to settle [the child] into a routine first. Once [the child] is settled at school and in extra-curricular activities, I will look for work and/or enrol to study. I have discussed this with [Mr T] and he fully supports me in this.

    39. When [the child] was four years old she started attending Dutch primary school in Australia. [The child] continued to attend two hours each week until she completed Dutch primary school at 12 years of age. This schooling was in accordance with the Dutch curriculum and [the child] sat the same tests as the primary school students in The Natherlands.

    40. [The child] has attended Dutch school for two weeks in five of the seven years we travelled to The Netherlands pursuant to the December 2009 Orders.

11. I further note that, at paragraphs 46 to 55 of his Affidavit, the mother’s partner sets out his plans to support the mother and the child in their potential relocation to the Netherlands, as follows:

    46. I am working as a trader/general manager in [a commercial industry].

    47. In about the beginning of 2015, I became a shareholder for 50% of an Import/export company located in [City Z].

    48. [City Z] Is an important port and logistical hub for [stock] arriving for the European market.

    49. I am established in The Netherlands and believe The Netherlands has many positives and is blessed with different opportunities to link into the international environment such as education and international business.

    50. I live on a boat which has about 100m2 of living space and is moored in the centre of [the university town].

    51. I fully support [Ms Marijke] and [the child] to live in The Netherlands.

    52. [Ms Marijke] and I plan to marry as soon as she is able to live in The Netherlands with [the child].

    53. If [Ms Marijke] and [the child] are able to move to The Netherlands [the child] will have her own bedroom.

    54. If [Ms Marijke] and [the child] are able to move to The Netherlands I will continue to try and encourage [the child] to have a relationship with [the father]. By this I mean I will encourage [the child] to Skype and email [the father].

    55. If [Ms Marijke] and [the child] are able to move to The Netherlands, I will provide financial support.

12. Based on the evidence of the mother and her partner, in that regard, I find that the mother’s proposal for the child’s residence to be relocated to The Netherlands is founded on practical and appropriately researched considerations.

13. Thirdly, I reiterate that the father has not engaged in these proceedings for some time, has failed to file material in accordance orders made for the preparation of this hearing on 21 September 2018 and has failed to attend Court today.  As a result, I am unable to make findings in respect to the motivations of the father in opposing the mother’s relocation to The Netherlands.

14. Fourthly, in terms of the extent of the detriment that would be caused to the father and his future relationship with the child if the mother’s application were granted, I note that the father has not seen the child since April 2016 and has not spoken to the child since December 2016.  As I will set out, it cannot be said that the father currently has a meaningful relationship with the child, and therefore, the granting of the mother’s application, in circumstances where the mother and her partner have stated an ongoing preparedness to encourage the child to renew her communications with the father, cannot be said to cause detriment to the current state of the father’s relationship with the child. I accept, however, that the child’s relocation would cause practical difficulties in the event of the father and the child wishing to re-establish a meaningful relationship.

15. Finally, having regard to the mother’s evidence to which I have referred, I am satisfied that the child would benefit from maintaining a closer relationship with her maternal extended family, upon relocating to their country of residence.

16. In proposing to make final parenting orders in this matter, the first task before the Court is to consider whether the presumption of equal shared parental responsibility applies. Section 61DA(4) of the Family Law Act 1975 (Cth) (“the Act”) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for their parents to have equal shared responsibility for them.

17. In circumstances where the child has not seen the father since April 2016 and has not spoken with him since December 2016, the father has not sought to enforce the consent orders to spend time with the child and, as I will discuss, the father has not provided financial support in respect to the child’s needs, I am satisfied that the presumption set out in s 61DA(4) has been rebutted. I will, accordingly, make orders as sought by the mother, for her to have sole parental responsibility.

18. In those circumstances, it is unnecessary for me to consider whether an order for equal or substantial and significant time between the child and the father should be made, pursuant to s 65DAA of the Act. Rather, my task is to make orders that I consider to be in the best interests of the child, having regard to those matters set out in s 60CC of the Act, in the context of the mother’s application.

19. In terms of s 60CC(2)(a) of the Act, I have noted that the child has not had contact with the father since December 2016, and in that sense, the child has, unfortunately, not enjoyed a meaningful relationship with the father for some time. However, in that regard, relevant authorities confirm that the Court’s focus should be upon the future, that is, the prospect of the child enjoying such a relationship at some point.

20. In that context, the Independent Children’s Lawyer appropriately identified the issue in this case as facilitating the child re-establishing a meaningful relationship with the father, in the future.  As I have noted, I accept that orders providing for the mother to relocate the child to The Netherlands will remove the ease with which such a relationship could otherwise be reinstated. 

21. However, both the mother and her partner have indicated a preparedness to facilitate the child’s relationship with the father, and the orders sought by the mother provide for that to occur.  The proposed orders also require the mother to keep the father informed of the child’s progress and to facilitate the father obtaining relevant information concerning the child’s education, health and general welfare.  The proposed orders also provide for there to be communication between the child and the father.  In other words, the mother’s proposed orders provide a mechanism whereby the prospect of the child re-establishing a relationship with the father could be facilitated.

22. In terms of the issue of risk, as set out in s 60CC(2)(b) of the Act, I note that, in her Affidavit, the mother gives evidence as to her contention that the child spending time with the father in his household would place the child in a situation of risk. This is as a result of the father’s alcohol consumption and propensity for violence, which she contends, on an unchallenged basis, has previously been an issue. The orders proposed by the mother would result in the child moving to The Netherlands, and accordingly, not being exposed to that risk.

23. In terms of identifying the additional relevant factors that the Court is required to consider, pursuant to s 60CC(3) of the Act, the Independent Children’s Lawyer has helpfully, in her case outline document (Exhibit “ICL-2”), set out a summary of the relevant evidence contained in the material to which I have earlier referred.

24. In terms of the views of the child, I accept, as contended by the Independent Children’s Lawyer, that the child is described as “a girl of average to above average ability, who expresses herself in an articulate and thoughtful manner”.  This is confirmed in the Affidavit of Mr E, which describes the child as “A mature girl who had views on her future living arrangements which were well considered and firmly held”.

25. The child expressed to Mr E a strong and unequivocal wish to move to The Netherlands, as proposed by the mother.  I refer to paragraph 26 of Mr E’s report, wherein he states:

    With regard to the future and her wishes and views regarding her mother's application, [the child] told me quite unequivocally that she wanted to move to The Netherlands. She expressed this in the following way: ''I would like to move to The Netherlands for the rest of my high school time. I'd like to leave here. I have the horses and some friends but it's cool too to move to a different country." She mentioned knowing a couple of girls who had moved overseas and saw this as a positive thing to do.

26. Further, at paragraph 32 of that report, Mr E records the following:

    With regard to her relationship with her father [the child] said: “I don't have a desire to call him. Maybe I will make some contact but I'm uncertain about that. I know I don't want contact now.” She said she was "ten out of ten" certain that she didn't want to have contact with her father at present.

27. In terms of the nature of the relationship of the child with each of the child’s parents and other persons, I again accept the contentions of the Independent Children’s Lawyer that the evidence indicates that the mother is the child’s sole carer and that they have a strong relationship.  Consistent with that, at paragraph 27 of his report, Mr E notes that the child describes a good relationship with the mother’s partner, with whom she and the mother would be living in the event of them relocating to The Netherlands.  As I have indicated, unfortunately, the child currently does not have a relationship with her father, having last spent time with him in April 2016 and last speaking with him in December 2016.

28. In terms of the extent to which the child’s parents and other persons have taken the opportunity to participate in making decisions about the long-term issues in relation to the child, to spend time with the child and to communicate with the child, I note, that since April 2016, the mother has effectively been solely responsible for making those relevant decisions and caring for the child.  Further, there is no evidence that the child currently has a relationship with any members of her extended paternal family.

1. In terms of the extent to which the child’s parents have fulfilled or failed to fulfil their obligations to maintain the child, I note that, in the period subsequent to April 2016, the mother has been solely responsible for the day to day care of the child, including financially.  The mother’s unchallenged evidence is that the father has remained in arrears of child support for over eight years, and currently owes approximately $9,468.56, in that regard.

2. In terms of the likely effect of any changes in the child’s circumstances, I agree with and accept the contentions of the Independent Children’s Lawyer that the mother’s proposal will result in significant change for the child.  This is, by far, the most relevant consideration in this matter.  The mother’s proposal would necessarily impact upon the child’s ability to re-establish a relationship with the father.  It will also involve a change of school, home and friends for the child. 

3. However, as noted by the Independent Children’s Lawyer in oral submissions today, both the mother and the child frequently visit The Netherlands and spend considerable time there.  When travelling to The Netherlands, the mother and the child stay at the residence of the mother’s partner, which can appropriately be described as their “second home”.  In those circumstances, to assist in any transition, it is noted that the child has already been substantially exposed to, and engaged in, Dutch culture, including being fluent in Dutch, attending Dutch school for eight years, and travelling to The Netherlands annually. 

4. As I have indicated, it is acknowledged by the mother and the Independent Children’s Lawyer that the mother’s proposal will impede the opportunity for the child and the father to easily re-establish their relationship and will confine their communication, essentially, to electronic means, while the child lives in The Netherlands.  However, as against that, the reality of the situation needs to be appreciated, and that is that the child has not had a relationship with the father for some time, and that she is currently not expressing a desire to re-establish that relationship.  As I have indicated, the orders sought by the mother will facilitate the child and the father re-establishing their relationship, if the views of the child and the father change at some point.

5. In terms of the practical difficulty and expense associated with the child spending time with the father, clearly that is also a very relevant consideration.  Again, I agree with the contention of the Independent Children’s Lawyer that the mother’s proposal will result in difficulties in the child spending time with the father.  However, those difficulties need to be considered in the context of the benefits for the mother and the child, if the child were permitted to relocate to The Netherlands.  These include the mother being able to reside with her partner and obtain support from him, as well as her family and friends, who reside in The Netherlands.  That support, both physical and emotional, will also be provided to the child.  It is also relevant that the child is not expressing a desire to re-establish her relationship with her father, at this time.

6. In terms of the capacity of each of the child’s parents and other persons to provide for the needs of the child, it is the case, as I have already noted, that the mother has been solely responsible, since April 2016, for providing for those needs of the child.  In the context of the mother being the primary carer of the child, there has been no suggestion that the mother has acted in any way that is other than entirely consistent with her having sound parenting capacity and having exercised that capacity.  There is no indication that the mother will not continue to act in such a manner into the future, including in the event of orders being made for the child to relocate to The Netherlands.  There is currently, on the other hand, no evidence of the father’s capacity to provide for the child’s needs. 

7. In terms of the maturity, sex, lifestyle and background of the child, I note that she is currently 13 years of age.  The mother was born in The Netherlands and the child has expressed a clear view in support of the mother’s proposal to relocate there.  Further, there has been some evidence in the material presented to the Court that the child has shown some symptoms of anxiety during the course of these proceedings.  I note that, in the Netherlands, the child will be supported by the mother, the mother’s partner and other of the mother’s friends and family, which will be of benefit to the child.

8. In terms of the issue of family violence, I note that the unchallenged evidence of the mother is that the child has previously been exposed to incidents of family violence in the father’s household.  Relevantly, the Police attended the father’s home on 9 April 2016 in response to an assertion by the child that she had been exposed to verbal abuse by the father, which caused her to feel afraid. 

9. The mother also asserts that, following the parties’ separation, the father commenced a relationship with Ms F, which was characterised by family violence.  During that relationship, the Police were called to attend the father’s premises, including during periods when the child was spending time there pursuant to the consent orders, including on 11 June 2012 and 12 October 2012, and in April 2016.  Again, I note that the mother’s evidence is unchallenged, in that respect.  That evidence is plausible and consistent with an account the child gave to Mr E, as follows:

   [The child] said her father was "a completely different person" when he had been drinking and she said she felt "uncomfortable" being around him at these times. She also complained that he ''swore a lot." She said Police visited the home "a dozen times" over the years she went to the home, due to the arguing and her father's conduct.

10. As I have indicated, in circumstances where the presumption of equal shared parental responsibility does not apply in this matter, it is unnecessary for me to consider whether to make an order for equal or substantial and significant time between the father and the child.  Rather, the Court is required to make orders which, in considering the circumstances of the parties, and specifically in the context of the mother’s proposal to relocate to The Netherlands, are in the child’s best interests. 

11. Having regard to those matters to which I have referred above, I am satisfied that the orders sought by the mother, as varied in respect to proposed order (f), are in the best interests of the child, and accordingly, I make orders in those terms.

I certify that the preceding forty-four (44) paragraphs are a true copy of the ex tempore judgment of the Honourable Justice McClelland delivered on 14 November 2018.

Associate: 

Date:              26 November 2018