Mason and Taylor

FAMILY COURT OF AUSTRALIA

MASON & TAYLOR

[2012] FamCA 768

FAMILY LAW – CHILDREN – With whom a child shall live – international relocation – best interests of the child

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Beach and Stemmler (1979) FLC 90-692
CDJ v VAJ (1998) 197 CLR 172
Chapman and Palmer (1978) FLC 90-510
Cowley & Mendoza [2010] FamCA 597
Flanagan v Handcock (2001) FLC 93-074
George and Radford (1976) FLC 90-060
Heath & Hemming [2011] FamCA 749
Kelley and Kelley (1981) FLC 91-002
Mahoney and McKenzie [1993] FamCA 78; (1993) FLC 92-408
Preston & Preston [2011] FamCA 618
Skrabl and Leach (1989) FLC 92-016

APPLICANT:

Ms Mason

RESPONDENT:

Mr Taylor

INDEPENDENT CHILDREN’S LAWYER:

Damien Carter

FILE NUMBER:

BRC

10521

2009

DATE DELIVERED:

6 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

1, 26 and 27 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Awyzio
DA Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bourke

SOLICITOR FOR THE RESPONDENT:

Terence O’Conner Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Quinn

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Damien Carter
Carter Farquar Mediation and Family Law

Orders

That the father and the mother shall have equal shared parental responsibility for the child, Y, born … March 2002 (“the child”).
That the child shall live with, spend time with, and/or communicate with each of her parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, then as follows:
(a) The shall live with the father in Australia;
(b)The mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the mother by telephone and/or Skype (or other similar forms of communication) each Sunday and Thursday between 5:30 pm and 6:30 pm (Brisbane time), with the mother to initiate such calls, and at any reasonable time requested by the child;
(c) The child shall spend time with the mother:
(i)From 23 September 2012 until 13 October 2012 for the purposes of attending the mother’s wedding in Europe, the mother to be solely responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and
(ii)In either Switzerland or Australia, at the mother’s election, for the whole of the June/July Queensland school holidays each year and for a period of four weeks over the December/January school holidays each year with the parents being equally responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and
(iii)Any such time during the December/January school holidays each year shall only include 24, 25 and 26 December commencing in 2013 and then only in each alternate year thereafter; and
(iv)Holiday arrangements shall be made such that the child does not miss any school just before the school holidays or just after the school holidays save for when there is prior written agreement of the parents; and
(v)In Australia, for half of all other Queensland school holiday periods; and
(vi)In the event that the mother returns to Australia for a visit outside of Queensland school holiday periods, then for periods of three hours between 3 pm and 6 pm three afternoons during the week and each alternate weekend during any such visit from 3 pm Friday to 6 pm Sunday.
During any time that the child is absent from Australia in accordance with these Orders, the mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the father by telephone and/or Skype (or other similar forms of communication) each Sunday and Thursday between 5:30 pm and 6:30 pm (Brisbane time), with the father to initiate such calls, and at any reasonable time requested by the child.
That in respect of the equal sharing of the costs of the child’s flights and the costs of the flights of an accompanying adult, in the first instance, the mother purchase the airline tickets for travel between Australia and Switzerland and the father shall pay to the mother one half of these travel costs upon receipt of the child’s itinerary for that particular trip and a copy of the receipt for the tickets, payment to be made by him into a bank account nominated by the mother;
That the child shall attend a German language course from Years 8 to 10 inclusive, the father to forthwith do all things necessary to ensure that she is enrolled in that Program and in the event that the child is not accepted into that Program for any reason then the father shall ensure that she shall receive weekly private tutoring in standard German at the father’s expense whilst she is in Years 8 to 10.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults, failing which this Order shall, of itself, constitute such authority;
(b)Speak to, and receive oral or written communication from, any school or other educational institution attended by the child, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;
(c)Keep the other parent appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the child (such as Skype and email), with any changes to same being notified to the other party within 48 hours of same occurring;
(d)Notify as soon as reasonably practicable the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.
The mother and father shall be at liberty to attend any and all school and extra-curricular activities undertaken by the child and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.
The Independent Children’s Lawyer shall, at his discretion, meet with the child within one week of the date of these Orders to explain them to her.
The Independent Children’s Lawyer shall be discharged 28 days from the date of these Orders.

Dismissal of Other parenting Applications

All outstanding Applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other Orders

After the expiration of 28 days from the date of these Orders, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B of the Act, 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10521/2009

Ms Mason

Applicant

And

Mr Taylor

Respondent

REASONS FOR JUDGMENT

Introduction

Ten year old Y was born in Australia and has lived here all of her life. Her father is Australian. Her mother is Swiss. They began to live together in this country in 1993, not long after Ms Mason (“the mother”) first came to Australia from Switzerland in 1992. The couple married in 1996 and separated in 2004 when the child Y was only two years old.
The child has, for as long as she could remember, moved regularly and frequently between the care of her two, loving parents. Largely, her parents have facilitated this in a co-operative manner, focused upon the child’s needs.
In 2009, the mother met a European man who was holidaying in Australia. They are about to marry and they have determined to make their home in Switzerland. The mother wants to take the child to Switzerland to live there with her and her new husband. Mr Taylor (“the father”) does not want the child to go.
The mother informs the Court, with no uncertainty, that she is going to move back to Switzerland whether she is permitted to relocate the child or not. She maintains that the child’s best interests will be served by moving with her to Switzerland and spending time with her father in the Swiss school holidays. The father contends, in these circumstances, that the child’s best interests will be served by continuing to live in Brisbane with him and his new wife and their baby, and spending time with her mother in the Queensland school holidays.
As the child’s mother and father have not been able to reach an agreement as to which country their daughter should live in and just how she should maintain her important relationships with each parent, they both ask this Court to determine these difficult questions.

SOME BACKGROUND

The mother was born in Switzerland in 1971 and is now 40 years of age. She travelled to Australia in 1992 as a young woman. Here, she met and started a relationship with the father. She briefly went back to Switzerland to commence university but returned to Australia in 1993 to live with the father in Perth.
The father was born in Perth 1971 and is now 41 years of age.
In Perth, the mother completed an undergraduate degree with First Class Honours. She became an Australian citizen in 1995.
The father completed a Ph.D. in Perth in the 1990s.
In 2000, the mother and the father moved to Brisbane so that the father could commence studies at a Queensland University. At the same time, the mother commenced her own study at the same university towards a Ph.D.
When the child was born, the mother took time off from her studies, returning to them part-time from February 2003. The father became a health professional at the end of 2003 and started his internship in 2004 at B Hospital.
The mother and the father separated in December 2004. Initially, after their separation, the father wanted to share equally the care of the child. The parents were not able to agree on that arrangement but were able to agree on the child spending ten nights per fortnight in the mother’s care and four nights per fortnight in the father’s care. Over time, the father continued to seek a greater role in the care of the child and they agreed to increase the time the child was in his care to six nights per fortnight.
This shared care arrangement has been in place now for over three and a half years and has been achieved without any court orders being made. The father becomes responsible for the child from the commencement of school each Monday, picks her up from her school that afternoon every week and cares for her until he drops her at her school each Wednesday morning. He does not work on Mondays and Tuesdays, being available to take the child to and from school on those days and to care for her outside of school hours. He also has her with him each second weekend from Friday at 6:00 pm until 5:30 pm on Sunday. The child otherwise lives with her mother and the parents share the child’s school holidays equally between them.
The child has been raised speaking Swiss German with the mother and English with the father. She is fluent in both languages. The mother and the child are in regular communication with their extended family in Switzerland. The father supports the child’s multi-cultural and bi-lingual upbringing and has always agreed to the mother taking the child to Switzerland every year for holidays of around four to six weeks at a time. The mother and child have done that since the year the child was born.
The father met his current wife, Ms T, whilst volunteering as a parent assistant at the child’s school. She works there in a bilingual bicultural program. They started living together in March 2009, married in June 2010 and had a child together in November 2010. His name is V and he is nearly two years old.
In 2009, the mother met her current partner, Mr K, whilst he was on holidays in Australia. Mr K is from the Europe. They have since then successfully maintained a long distance relationship, spending time together in Europe and in Australia in the time since they met. They are about to marry in Europe in early October this year. They intend to live in Switzerland and both hope to have a baby fairly soon.
In February 2011, the mother caused a proposal for what was described as a temporary, 3 year, relocation of the child to Switzerland to be sent to the father by solicitors on her behalf. The mother’s desire to have the child educated in standard German and to live for some time in Switzerland, in order for her to “have a true choice in her life as to where she wants to live, study and work” was the reason advanced for the proposed move. Of course, the mother expressed her hope that the father would agree to her proposal but foreshadowed that she was prepared to litigate the matter in this Court if agreement could not be reached.
The father did not agree to the mother taking their child to live in Switzerland and the mother commenced proceedings in this Court on 27 April 2011 in which, principally, she seeks orders permitting her to relocate the child’s residence to Switzerland. The application also seeks orders that, after three years, the parents and the child participate in an assessment process aimed at producing a report on the issue of the child’s return to live in Australia and that they participate in mediation to discuss the child’s ongoing living arrangements upon receipt of that report.
The father filed his response on 2 June 2011. In that he seeks an order that the mother’s application to be permitted to relocate the child to live in Switzerland be dismissed and that the child live in an equal shared care arrangement with the parents. He clearly did not foresee the mother’s determination to move to live in Switzerland without the child if she is not permitted to relocate the child.
The parties then agreed to jointly appoint Mr M, a Consultant Social Worker, to undertake interviews and prepare a family report to assist them and the Court. He prepared a report dated 5 August, 2011.
An Independent Children’s Lawyer was subsequently appointed to the case in September 2011. He requested Mr M do an “addendum” to his report after interviewing Mr K and the child. He did, and it is dated 23 February 2012.
The trial was first listed for 1 March, 2012. The ICL made application for Mr M to again interview the child in the context of the mother’s position that she was going to move to Switzerland even if the child was not permitted to relocate with her. The Court was informed that Mr M had not understood that when he had previously interviewed the parties and the child. A reading of his report and the addendum reflected that to be correct and arrangements were made for that to occur. The trial was adjourned part-heard to 26 and 27 March, 2012 and Mr M provided a second “addendum” dated 20 March, 2012 after having again interviewed the child, the child having by then been told of her mother’s certain position.

By what principles is this case to be decided?

This case is what family lawyers call “an international relocation case”. However, it is beyond doubt now that such a case does not actually fall into a sub-category of parenting case that attracts the application of principles specific to such cases. An application for orders permitting one parent to relocate a child to live in another country is merely an application for parenting orders that is to be determined in accordance with the statutory pathway set out within Part VII of the Family Law Act 1975 (“the Act”).
Any parenting orders that this Court makes in respect of these two parents and their child must be made with regard to the best interests of that child as the paramount consideration. The Court is to determine what is in the best interests of the child by examining the evidence against a number of mandatory considerations listed in s 60CC of the Act, having regard also to the stated “Objects and Principles” of Part VII of the Act. It is a broad inquiry as one of the matters expressly required to be considered is “any other fact or circumstance that the Court thinks is relevant”.
The process of determination is not a mechanical or mathematical one. It is worth remembering that which McHugh, Gummow and Callinan JJ of the High Court said in CDJ v VAJ (1998) 197 CLR 172 at page 219 that:
it is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child… Best interests are values, not facts.
I have previously discussed the relationship between the Objects and Principles of Part VII and the matters mandatorily to be considered pursuant to s 60CC when determining what is in the best interests of the children in question (see Preston v Preston [2011] FamCA 618 at [37] – [47]). I remain mindful, in my determination of this case, of all that I have previously said about these matters.[1]
[1]I am also assisted by the discussion by Murphy J in Cowley & Mendoza [2010] FamCA 597 and Kent J in Heath v Hemming [2011] FamCA 749
Weighing and balancing the “best interests” considerations must also be done having regard to the respective proposals of the parties. Where, as in this case, there are two starkly contrasting proposals, with neither party putting forward, nor the Court identifying, a ready alternative to the child living in one country with one parent and travelling regularly to the other country to spend time with the other parent, the task for the Court is simply to determine which of the two proposals, in the circumstances these parents and their child find themselves in, is in the child’s best interests.
Whilst undertaking this determination, I remain acutely conscious of the rights of each parent to determine, legitimately, where each wants to live and where and how his and her own interests are best served. The mother’s reasons for wanting to relocate back to Switzerland could not be more bona fide. She intends to marry a European and they intend to make their home and try to have a baby together in Switzerland, the mother’s homeland, where she is richly endowed with family and friendship support networks and where employment prospects for her are abundant. Those reasons are to be treated no less seriously than the father’s reasons for wanting to stay living here in the western suburbs of Brisbane.

The Considerations

Y is a very fortunate child. She has two parents who dearly love her and generally work very well together, notwithstanding their separation, in co-parenting her. Of course, in the context of the current dispute, it could hardly be surprising that the threads of their co-operative parenting relationship have become a little stretched. However, there is no doubt, on the evidence before me, that the child has very strong attachments to both of her parents and that her time together with them is something she enjoys and benefits immensely from. There is similarly no doubt that the relationships she has with each of her parents are “meaningful” to her. I am also in no doubt that whether the child went to live in Switzerland with her mother or stays living in Australia with her father, that each parent will do all that he or she can to continue to promote and facilitate the child’s relationship with the other parent. In that regard, they each propose that the child spends a significant portion of her holiday time in the other country with the other parent and the child is already very accustomed to regular holiday travel overseas.

The mother effectively contends that the child has a stronger attachment to her than she does to the father. Of course, historically, the child has spent more time in her mother’s care than in her father’s care, but in recent years that difference has become rather insignificant. The mother, in her evidence, also seems to offer the opinion that part of the foundation for this perceived stronger attachment is that she is more emotionally attuned to the child than is the father.
However, Mr M, conscious of the mother’s position on this, offered the opinion in his first report that:
[A]ny examination of [the child’s] comments, her behaviour and her capacity to conceptualise issues appears to be more in support of relatively evenly based attachments between her mother and her father.
Having regard to the contents of Mr M’s reports, particularly that which he reports the child told him as well as his reported observations of the child, I am not prepared to find that the child does have a stronger attachment to her mother. I consider the child’s position, which I will now turn to, certainly reflects very even strength of attachments to her parents.
The mother’s evidence is that when she first discussed with the child her desire for them to move to Switzerland to live, in early 2011, the child expressed excitement about the prospect, indicating that she wanted to do it, and that it was only after the child spoke to her father about it that she “seemed to be torn” and said “she had wanted to go but now she wasn’t sure.” I do not consider that I can take much from that. Mr M reports in his first report that the child told him that she had spoken with her mother about the matter a couple of times. She is reported as saying to her mother that she did not want to talk about the issue as it made her cry.
Quite significantly though, Mr M reports the child as emotionally saying after first acknowledging that she might have changed her mind about the matter a couple of times, “but I know now I don’t want to go.”
Mr M reported his opinion that the child was an intelligent girl who is able to verbalise her emotions competently for her age. I got no sense that both parents would not share that opinion.
Mr M went on to report a discussion with the child in which he elicited from her the things that she would see as positives and negatives about a prospective move to Switzerland. He was seemingly impressed with her capacity to provide responses in a forthright, considered way. He points out that the child has a long history of spending time in Switzerland with her mother. Indeed, she has even been along to school in the town where it is proposed she would live for several days. Her Swiss German language capabilities and her experiences in Switzerland allow her, as Mr M points out, to “easily comprehend what her environment would be like, if she were to move with her mother.” Mr M noted this as providing a basis for the child to be able to view the idea of the proposed move “in a concrete way and more objectively than many children of her age might be capable of doing.”
The child is reported to have pointed out, as negatives with the proposed move, that she would only see her father, her step-mother and her baby brother, fairly infrequently and that would make her feel sad and she would really miss them. She had also remarked that most of her friends are here and that she would miss them too.
Interestingly, Mr M reported that the child did not appear to have a concept of losing time with her mother if her mother was not permitted to relocate her to Switzerland and that the reality of that had not been suggested to her. He opined that for the child, expressing the view that she did not want to move to Switzerland was “really a way of maintaining what she already has”.
At the end of his first report, Mr M expressed his view that there were strong reasons for the child remaining in Australia rather than moving to Switzerland. He listed them as:
·The child’s strong attachments to both her parents;
·The fact that her development has been so positive to date;
·The fact that she already has a very close association to her Swiss heritage which will be sustained here in Australia;
·Her own views.
Mr M interviewed the child again in February of this year. He saw her with the mother’s new partner after the mother and the child had spent a long holiday in Switzerland, including time with Mr K, over the Australian summer. He reports her as telling him she still felt the same way about the prospect of moving to Switzerland, particularly, that she did not want to go and that it upset her to talk about it too much.
Mr M interviewed the child again in March this year, at my direction on the application of the ICL, for the child’s views to be ascertained in the context of having been told that her mother was going to move to Switzerland to live even if the child was not permitted to be taken with her to live there.
He observed in the report prepared after that meeting that the child told him she felt nervous, telling him that she now “felt it was all up to her”. She reported recently being told by her mother that her mother was going to Switzerland whether the child could go with her or not. She reported feeling very sad about that, “feeling that she loses either way.” Mr M reported the child as now telling him that she does not know what she wants to do and does not feel that she can make that sort of choice. She said she felt the same about both her parents and would miss either of her parents equally whichever country she was living in. She reported feeling that she could settle in Switzerland if she had to but would miss her father and her step-mother and little brother a lot. Similarly, she reported she would similarly miss her mother a lot if her mother was to move without her. Sadly, she reported not feeling as happy as she used to and she suggested that could be because of this case.
Mr M assessed the child’s feelings as “genuinely torn.” The child’s previous views were expressed in the context of considering the place where she might prefer to live, assuming that if she stayed in Australia her mother would also. This time he interviewed her, he noted that she saw it as a choice between her parents and he observed that she either could not or would not make such a choice. He opined that such thoughts were consistent with a child of a “relatively even attachment between two parents, experiencing a sense of personal burden in relation to her wishes.”
I find that the child does not have, or will not express, a preference to live with either parent as opposed to the other. I accept the strength of her attachment to each of them is significant and, so far as can be discerned, even. However, I do find that the child, being very familiar with Switzerland, nevertheless has expressed a preference for living in Australia that I must take into account and give some weight to in the balancing process.
The evidence satisfies me that the child has close, loving relationships with her step-mother who has been with her father now for several years. Significantly, she also has a baby brother in her father’s household to whom she is noticeably attached. Moving to Switzerland would separate her significantly from that sibling and, I find, given the brother’s very young age, would negatively impact upon the development of the sibling relationship for both of them. I am comfortable in finding that the development of a meaningful relationship with a sibling is a matter to be taken into account when considering the best interests of a child. I find that the relationship with her brother is likely to be important for the child Y, as it is for her brother. When saying that, I acknowledge too that the mother expresses an intention to have another baby with her new partner and that any baby born to that relationship will also be the child’s sibling. However, at the moment that is an expression of intent, the outcome of which cannot be foreseen. The prospect of the child having another sibling in Switzerland if she moves there cannot be considered in the same way as the fact that she already has one here in Australia with whom she is developing a relationship that is likely to be important for them both and from whom she would be significantly separated if she moves to Switzerland.
The child, of course, also has a developing relationship with her mother’s new partner, Mr K. They met briefly when her mother and he first met. They spent a week together in Switzerland in December 2010. They spent more time together during the two months that he spent in Australia around April last year and more time together again in Switzerland over the Christmas/New Year holiday period of 2011/2012.
Mr M observed them together briefly in February this year when Mr K was out in Australia again. He noticed that the child was happy and outgoing at the time and actually trying to make a nervous Mr K feel more comfortable. She told Mr M when he spoke to her alone that she liked Mr K and was getting along fine with him. That is certainly positive and although it is a fact that the relationship of the mother and Mr K is one that is relatively new and, to some degree, yet to be tested upon the complete merger of their day to day lives in the one settled home in the one settled location, I could not say that I have any particular reason to consider that it will not be a successful relationship.
The child has relationships with her paternal grandparents who live in Perth. She has spent time with them regularly, though not frequently, during school holidays over the years. She has relationships with her maternal grandparents and her mother’s siblings and families in Switzerland. Similarly, she has spent regular holiday time with them during holidays over the years. I consider that each of those sets of relationship is important for the child. There will be changes in those relationships if the child moves to Switzerland. The relationships with her maternal extended family will have a greater potential to develop, whilst the relationships with her paternal extended family will have more limited prospects of development. If she stays in Australia and visits her mother in Switzerland during holidays I would expect there to be little change in the nature in which the relationships with her extended families are currently developing. She will still see her maternal extended family members in a similar manner to that which she is used to. I would expect she would also continue to see her paternal extended family members as she currently does.
It is really the impact upon the child of the change in the way she currently spends time with and relates to each of her parents that is going to be the biggest issue for the child to cope with whichever of the two competing proposed outcomes is put in place. She will be changing from spending almost equal time with each of them, whilst living her day to day life, to living solely in the care of one of them day to day and spending holidays, principally in another country, with the other. Both parents and their partners said they would attempt to mitigate the impact of this on the child with support and appropriate counselling. That said, the child, who is aware of the enormity of the change that presents itself to her, clearly does not relish the prospect. She will have loss and grief that she will have to deal with. The impact of the change that is now going to occur in this child’s life one way or the other is a matter I must consider carefully.
I am quite satisfied on the evidence in this case that both parents have taken every opportunity they could to participate in decision making about the child, to spend time with the child and to communicate with the child during this child’s life so far. Although the mother did give evidence critical of the father’s attitude to the fulfilment of his obligations to financially maintain the child, I was not at all convinced that the father had not taken up his obligations in this regard with the appropriate level of acceptance of responsibility.
Additionally, the mother went into evidence about matters that she considers demonstrate less than optimal parenting by the father in the past. I do not accept that these matters demonstrate differences in parenting capacity that should determine the outcome of this case.
I am satisfied that the father provides adequate parenting for this child when she is in his care. It is difficult to imagine that the mother could so certainly propose to move to Switzerland without the child if the Court does not permit her to take the child with her if she was not satisfied that the father provided adequate care for the child.
I accept that the father himself has made many lifestyle and career planning decisions over the years since the child was born reflective of commitment to being available to care for her and his understanding of the importance of maintaining the relationships she has with him and with her mother. Similarly, the mother, who I accept has been desirous of returning to live in Switzerland for quite a long time, has shown similar understanding of the importance of these things. I can not differentiate between the two of them in this respect.
Facilitating the relationship with the other parent, whichever country the child lives in after my decision, will be costly and present logistical issues for the parents. In the mother’s affidavit she referred to spending approximately $50,000 on travel and communication to and from Switzerland in the past six and a half years. At the child’s current age, I expect it will be necessary for her to be accompanied on flights between Australia and Europe for some time. The mother did give evidence that she would attempt to arrange the child’s travel so that the child could be accompanied by family friends between Australia and Switzerland in order to lower the cost of the child’s travel. In any event, these matters will present significant issues to the two parents that are to some extent, only, alleviated by the fact that the father earns a reasonable income as a health professional and the mother has good employment prospects in Switzerland that should see her earning a reasonable income.
At trial, the father raised some degree of inflexibility in his work arrangement as well as the inflexibility of his partner’s work arrangements as impediments to his spending long periods of time with the child in Switzerland. On the evidence he provided, he would only be able to make family visits to Switzerland during the Australian school holidays, and he would not be able to visit for in excess of four weeks. One of the directors of the professional practice that the father works in gave evidence that although the practice would try to accommodate longer holiday requests, it would be difficult and is not encouraged. The father also noted in evidence the considerable expense it would be for him, his wife and his son to travel to Switzerland in order to visit the child.
I am, however, satisfied that both parents are really committed to working through any situation that confronts them after my decision is made and that each would do all within their power to ensure the child spends as much time as is practicably possible with the other parent if the child is living with him or her, including sharing in the costs of the child’s reasonable travel to maintain her relationship with the other parent.
A major plank in the mother’s case is her view that it is in the child’s best interests to move to Switzerland so that the child could further develop her Swiss identity and so that the child could receive educational instruction in standard German. As observed, the child is already fluent in Swiss German. That language is not quite the same as standard German that is the language taught in schools in that part of Switzerland that the mother comes from and wants to return to. The mother firmly believes that the child should have the opportunity at this stage of her life to experience life and education in Switzerland so that she becomes totally bi-lingual and bi-literal in standard German, thus giving her a proper basis for a choice as to where she wants to live, study and work when she is an adult.
Those are admirable beliefs. I am quite satisfied that significant exposure to a second culture in a child’s life as well as the acquisition of an ability to speak more than one language are positive experiences for children in general terms, as they are equally for adults. However, where a child’s parents come from two different cultures and different language backgrounds, it is generally for the child’s parents to agree on how the child is exposed to the different cultures and languages. That said, I am nevertheless satisfied that a child indeed has a right to enjoy and experience the different cultures and languages of each of its parents. Indeed, the Act expressly requires that right to be considered where the child is an Aboriginal child or a Torres Strait Islander child. I am not convinced that there is any lesser obligation on the Court to consider such a matter when the child is of different racial and/or cultural backgrounds even though it is not expressly listed as a s 60CC consideration. I regard it as a relevant matter in any event.
In this regard, I note that the mother has, with the support of the father, already been actively exposing this child to her Swiss/German culture and language. Swiss German is what the mother and the child have always spoken together and the child has been holidaying with her mother annually in Switzerland for as long as she can remember. I consider the mother is an independent woman of strong personality and is quite determined for her culture and language to be an important part of the child’s development. As I have already observed, the mother is to be admired for that. I accept though that the father, too, is committed to the child being given this exposure and that he will ensure that such exposure is maintained if the child continues to live in Brisbane with him. Whilst I accept that the child will not get quite the same level of exposure to her mother’s culture and language as she would if she moved with her mother to live in Switzerland, I am satisfied that the child’s exposure to those things, even if she remains here in Brisbane, will be such as to allow her, when she reaches sufficient maturity, to make well informed decisions about where she wants to live, study and work that could quite readily involve moving to Switzerland to live. If the child continues to live in Australia, the mother would, I am satisfied, work very hard to make the child’s experiences whilst on holidays in Switzerland as culturally and linguistically beneficial and rewarding as possible for the child.
The mother’s proposal is one that involves the child going with her to Switzerland for a period of three years after which she proposes further review by the parents with the assistance of another family report. It seems the mother presents the proposal as one where there is a real possibility that the child could return to Australia as a result of that exercise. The father expresses doubt about the soundness of that being suggested as a genuine prospect. Mr M also expressed some difficulty understanding how that might be expected to work. The child herself is reported by Mr M to have expressed some confusion about this issue. I, too, must state that I have great difficulty accepting that such a proposed course is likely to be productive of any change in the living arrangements that are then in place for the child. Particularly, I do not consider it realistically presenting a course likely to result in the child returning to live in Australia.
It is the case that the man the mother is now going to marry, Mr K, does not have an automatic right to live in Australia. The evidence is that he has applied for a visa giving him the right to live here but that, at the time of trial, it had not been processed. When asked about the visa application at the trial, Mr. K gave evidence that I understood to reflect a decision to take the step of applying so as to potentially open up the option of him moving to Australia to live with the mother if the outcome of this case was not what they hoped for. I found that particularly interesting given that he nevertheless expressed the view that moving to live in Australia was not what he wanted to do and he confirmed that it was his understanding of the mother’s position that she would move to Switzerland and set up home with him there even in the event that she was not given permission to relocate the child with her. In any event, the outcome of his visa application is not known and I cannot, in the face of the evidence of the mother’s determination, even begin to consider that if the child is not permitted to be relocated to Switzerland that the mother might yet stay in Australia.

Counsel for the ICL, made submissions that the nature of this application, and the fact that the mother has indicated an intention to relocate with or without the child demonstrates that the mother is not child-focused. With respect, I do not accept that submission uncritically. As I have already said, the mother’s determination to move back to Switzerland is bona fide and her reasons must be treated with the seriousness they deserve. However, I do consider that the mother could not have completely lost sight of the fact that the apparent best outcome for the child at this point in her life, having regard to all of the matters that Mr M listed at the end of his first report, would be for the child to continue to live here in Brisbane with both of her parents readily available to be a regular, frequent and consistent part of her daily life. Therefore, I expect that this submission made on behalf of the ICL is, effectively, that the mother’s actions in respect of her new relationship and her decision to return to Switzerland to further that relationship, with or without the child, indicate a point of clear differentiation between the mother and the father in respect of their attitudes to the child and the responsibilities of parenthood. Whilst I am prepared to accept that there might be something in that submission, if indeed that is what counsel for the ICL effectively meant to convey, I am not convinced that it leads inexorably to a finding that the father’s parenting proposal is more advantageous for the child than the mother’s proposal.
I must also add before I move on to indicate to what matters I give greater significance in the determination of this matter, that, on the evidence, I cannot conclude that it would, in any way, be reasonable to expect the father to move to Switzerland so as to facilitate arrangements in Switzerland similar to those that currently exist here.
The father’s evidence, which was unchallenged by the mother, is that he has no residential or professional status in Switzerland, he has substantial obstacles to employment there within his profession and he has no understanding as to any legal right to live there in any event. He also gave evidence that it would also be unreasonable to expect his wife, with their new baby, to move to Switzerland in the circumstances. The mother clearly does not submit that different findings are available to me. Accordingly, I accept all that evidence.

How do all these matters balance out?

As I have already well and truly observed, the child’s best interests would be best served by her parents living near to each other and continuing to parent her co-operatively, just as they have been doing effectively since they separated when she was only two years old.
However, as is now abundantly obvious, I cannot make orders that provide for that as the father cannot reasonably be expected to move to Switzerland and the mother has expressed intention to move to Switzerland with or without the child.
Each alternative course open to me creates for the child the most significant change that she has ever had to deal with in her life (save for, perhaps, the initial separation of her parents which happened though when she was still an infant, a time that she would most probably have no cognitive memory of).
If the mother’s case that the child has a greater attachment to her than to her father was one that I accepted, I consider it would not be quite as finely balanced a case as I consider it is. But as I have already remarked, I am satisfied that the nature of the child’s attachment to and relationship with each parent is so evenly matched that any distinction in those attachments and relationships does not persuade me in favour of either proposal. Similarly, my satisfaction with each parent’s relative parenting capacity does not allow me to rely on any distinction between the two parents in this respect as a determining factor.
The matters that I ultimately give the most weight to and that I find determinative in so finely balanced a case include (and not in any particular order of importance) the familiarity the child has with a home base within her father’s home, the suburb and city she lives in, the school she attends and the friendships she has here, as well as the day to day activities she is already involved in here.
They also include the fact that the child has a well established, tried and tested relationship with her father’s wife that, on the evidence, I am satisfied is a particularly good one and beneficial to her. Whilst its existence will never substitute for a relationship with her mother, nor totally ease the grief and loss she will experience with the departure of her mother from her day to day life, it will, I find, add to the child’s stability and comfort from which she can face the emotional turmoil she is about to experience.
They also include the way in which the father has arranged his employment so as to be available to care for the child outside of school hours on two days per week. That availability will also offer the child stability and familiarity of arrangements from which to face the oncoming emotional turmoil.
The sense of security that she must get from the familiarity and contentment she already has with these things, evidenced, I accept, by her initial expression of her view that she did not want to move to Switzerland, will be fundamental to her capacity to be able to cope with the immense change about to occur in her life.
The child is, I am satisfied, a very intelligent child with a great deal of knowledge and awareness of her mother’s Swiss heritage, culture, language and the place her mother intends to relocate to. The child is aware of the schooling there and already has made friends there. She is familiar with and already has relationships with her maternal grandparents and others in her mother’s extended family in Switzerland. I accept Mr M’s opinion that weight can certainly be appropriately given to her expressed views in these circumstances.
I acknowledge that when the child became aware of the real nature of the choice that confronted her when asked her views after learning that her mother intended to move to Switzerland with or without her, she became troubled enough about the responsibility she considered was being thrust upon her to say she did not wish to express a preference. I do not consider that means though that the clear preference in respect of the country she wanted to live in, initially expressed by her, should now carry no weight and be disregarded. I give it the weight I consider it demands as an expression of the child’s level of happiness and satisfaction with her life in Australia in circumstances where she has substantial knowledge of the alternative lifestyle being offered by a move to Switzerland.
On balance, I consider a move to Switzerland will cause her significant loss and grief by the separation from her father, from her step-mother, from her brother and from all she is comfortably familiar with. The child herself told Mr M she thinks she could settle in Switzerland. One could have some confidence about such an assertion coming from the child although she is only ten years old, because of her previous significant experience of Switzerland, the culture, the language and her mother’s family. However, the child would, on her mother’s proposal, be going into a new family environment with a new step-father who she is familiar with through relatively limited holiday time together. Although she is reported to apparently get on well with him and says that herself, she did report some jealousy in respect of Mr K’s naturally competing demands for her mother’s attention.
Upon reflection, I find myself concerned for the child’s capacity to cope with the emotional turmoil that would surround all of these significant changes in her day to day life if she is required to move from Brisbane to Switzerland having expressed a clear preference for living in Australia and at the same time is required to live within a new family environment, where she, her mother and Mr K are all having to become accustomed to merging their day to day lives with each other’s lives.
I also consider that the likely detrimental effect on the child of a separation from her baby brother and the significant change that I am satisfied that would cause in what is a very important relationship for her as she grows into adulthood is a matter attracting significant weight in the balancing process.
Conscious, as I already pointed out I am, of the right the child has to enjoy her Swiss heritage, culture and language, I am nevertheless satisfied that the exposure she will get to that whilst continuing to live in Australia with her father, who commits to enrolling her in the German language program at A High School, and whilst spending significant holiday time with her mother in Switzerland, is sufficient recognition of that right in the circumstances confronting this child. As rational and admirable as the mother’s desires to have the child educated in the Swiss school system are, they do not, in my view, elevate this issue to being determinative of this case as a whole.
Ultimately, I consider the father’s proposal, that I find was actually forced on him with some sadness and reluctance when it became clear to him the mother was determined to go to live in Switzerland with or without the child, is, of the only two alternatives available to the Court, the one that best serves the child’s interests. In particular, it limits the amount of change that is about to happen in her life and gives her the stability and sense of security that I find the child herself is clearly wanting. I will not permit the child to be relocated to Switzerland.

Parental Responsibility

Neither parent asked for the Court to make an order in respect of parental responsibility. The issue of equal shared parental responsibility was not raised at trial and is not addressed by either the mother or the father in their affidavits.
In his Case Information document filed on 28 February 2012, the ICL proposed an order that “pursuant to Section 61DA that the presumption of equal shared parental responsibility apply to the Mother and the Father in relation to” the child. I am not satisfied that is an order I can make or that it would effect anything in any event.
The concept of parental responsibility is dealt with in Division 2 of Part VII of the Act. Section 61A says:
This Division deals with the concept of parental responsibility including, in particular:
(a)what parental responsibility is; and
(b)who has parental responsibility.
Section 61B says:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61C says:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Section 61D says:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
Relevantly then, s 61DA(1) of the Act provides that:
when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I am making parenting orders in relation to the child in this case. Accordingly, I must apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility for the child when doing so. That is, of course, unless the presumption does not apply having regard to the provisions of s 61DA(2) (where there has been abuse of the child or family violence) or it is rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s 61DA(4)).
I do not consider that the provisions of s 61DA(2) are activated. No abuse or family violence issues have been raised, so it is not the case that the presumption does not apply.
Before I turn to the issue of whether the presumption is otherwise rebutted, it is worth considering though whether the existence of a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child means, if the presumption is not rebutted, that such an order should be made in parenting cases where neither parent has sought such an order.
Making an order that the parents have equal shared parental responsibility brings s 65DAC of the Act into operation. It imposes the statutory obligation on parties who share parental responsibility for a child to consult the other person who they share parental responsibility with in relation to a decision that is to be made about a major long-term issue in relation to the child. Major long-term issue is defined in s 4 of the Act to mean issues about the care, welfare and development of the child of a long-term nature, including (but not limited to) issues about the child’s education, religious and cultural upbringing, health, name and any changes to the child’s living arrangements that would make it significantly more difficult for the child to spend time with a parent. S 65DAC not only requires consultation but also obliges both persons to make a genuine effort to come to a joint decision about the issue.
Making an equal shared parental responsibility order also brings s 65DAA into operation. That requires the Court to consider whether the child spending equal time with each parent is in the child’s best interests and reasonably practicable and, if so satisfied, then to consider making orders that provide for the child to spend equal time with each parent. If such an order is not made, the section then mandates the same consideration being given to the child spending substantial and significant time with each parent.
In this particular case, the living arrangements that will be put in place by the mother after the determination of the matter really preclude any finding that providing for the child to spend equal time or substantial and significant time with each parent would be both reasonably practicable and in her best interests so that exercise, even if required to be undertaken, would not result in any different outcome for the child than that which I have already determined is in her best interests.
Section 60CA of the Act says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
I am determining competing parenting orders. Although the parents have not sought an equal shared parental responsibility order, I consider that order which the ICL proposed should be made really was meant to be an equal shared parental responsibility order. In deciding the matter, I must regard the best interests of the child as the paramount consideration. Therefore, I am satisfied, if the s 61DA(1) presumption is not otherwise rebutted, that I must make the order.
I have already found that these parents have, since their separation, co-parented effectively and communicated well in so doing. Although the distance between Brisbane and Switzerland is close to being as far apart as parents could actually live on Earth, making equally sharing parental responsibility a little formidable for them, I am satisfied that with modern electronic communication including telephone, email, and internet teleconferencing, these parents could easily continue their co-parenting as they have to date. Accordingly, I am not satisfied that the s 61DA presumption is rebutted and I will order that they have equal shared parental responsibility.
As I already just observed though, provision for the child to spend equal time with each parent or even substantial and significant time with each parent is not reasonably practicable and not in her best interests. No such order will be made.

Application to Change the child’s surname

In the mother’s Amended Initiating Application, she applies for an order that the child be known as Y Mason Taylor and that the parents both take all steps necessary to give effect to the change of the child’s name. Effectively, she seeks the inclusion of her own family name as part of the child’s name before the child’s current family name. She does not seek hyphenation.
The father opposes the mother’s application.
The mother gave no evidence at all in her affidavit going to this issue. Likewise, the father gave no evidence in his affidavit going to the reasons for his opposition. In oral evidence, he said that the mother had chosen to register the child’s name as the father’s name at birth and that there had never been “any suggestion otherwise” that the child’s name should be different. That was the extent of the evidence about the issue.
The ICL did not make a submission about the issue.
The Court has been making decisions on this type of application as long as it has existed. An order in respect of a child’s name is a parenting order and must be made having regard to the best interests of the child as opposed to parental rights and expectations. Certain principles to be considered and evaluated have emerged from the authorities.[2] The child should not be subjected unnecessarily to any confusion of identity. The short and long term effects of any change of name must be considered. The advantages, both in the short and long term which may accrue to the child if the name remains as it is now, must be considered. The present and ongoing involvement of both parents in the life of the child must be considered. Due consideration must also be given to the fact of the child’s current name registration and any earlier agreement that evidenced. That list is by no means exclusive of any other relevant considerations.
[2]Flanagan v Handcock (2001) FLC 93-074 in which the following cases were reviewed: George and Radford (1976) FLC 90-060; Chapman and Palmer (1978) FLC 90-510; Beach and Stemmler (1979) FLC 90-692; Kelley and Kelley (1981) FLC 91-002; Skrabl and Leach (1989) FLC 92-016 and Mahoney and McKenzie [1993] FamCA 78; (1993) FLC 92-408
I am constrained by the evidence before me on this issue to find that the child’s name was chosen and registered by agreement between the parents when she was born. The mother’s current position now reflects a change of preference by her following the breakdown of the parties’ relationship. How an adult deals with his or her own family name after relationship breakdown is a matter for him or her and it is unsurprising that parents, after separation, might want to change the family name of their children to be inclusive of their own family name. However, the Court cannot act on adult preference and expectations alone. It must act on findings about best interests after considering evidence. In this case, there is no evidence at all supporting a finding that the child is in any way currently confused about her identity or embarrassed in any way by her name. There is no evidence as to the advantages or disadvantages that might accrue to the child one way or the other and I certainly cannot act merely having regard to my own values or preference.

By my orders, the child will continue to live in Australia with her father. Her step-mother and her baby brother have the same family name as the child and her father. The child will continue to identify with the father and his family and, thus, changing her name at this point in time is not something that I am persuaded is in her best interests. She will soon be old enough for any views she expresses herself about the issue to be treated quite seriously by her parents and to include her mother’s family name in her name, perhaps even as the mother suggests, between her current given name and her family name, as a silent indicator of the other family she is by direct descent connected to, might be something that the parents could themselves agree is in the child’s best interests. However, absent that agreement at this point, and without more, I am not going to order such a change.

The Balance of the Orders

Considering the fact that the parties have agreed on parenting arrangements before this dispute emerged without recourse to court, my Orders will provide for the parents to agree upon all arrangements but with default provisions in the event that they cannot.
Electronic communication by phone and/or Skype for up to one hour, twice per week will be provided for. I consider that in the best interests of the child, at least as the default provision. I have considered time zone differences between Brisbane and Switzerland in setting the hour for the call. Such communication should, of course, be mutual in terms of when the child is on holidays in Switzerland with her mother.
My Orders will allow for the child to spend time with the mother in Europe for almost three weeks for the principal purpose of preparing for and participating in the mother’s wedding to Mr K. Whilst my judgment remained reserved after the trial, the mother brought an Application in a Case in respect of this matter, seeking orders that she be allowed to take the child to Europe for a specific period. I read and considered her supporting affidavit evidence before concluding these reasons. I read and considered the father’s affidavit evidence in response. I observe that the parents actually agree in respect of the time that the child can travel to Europe for the wedding. Accordingly, that is why my orders will allow that. The father simply sought additional holiday time with the child during the Christmas holidays at the end of this year. I have considered that and nevertheless determined, having regard to the fact that the child will not be relocating to Switzerland, that the holiday time provided for in my Orders is appropriately in the child’s best interests.
The Orders will provide for the child to spend two holiday periods a year with the mother in Switzerland (or in Australia if the mother wishes), including four weeks during the Australian Summer holidays. The Orders will allow the child to spend this Christmas with the father but from next year, she will be able to spend each alternate Christmas with her mother. The holidays shall be arranged so that the child does not miss any school unless the parents otherwise agree in writing. It is not considered in her best interests, as a default position, that she misses any school on a regular basis.
The costs of flying the child and any accompanying adult to Switzerland will be met equally by the parents. I am satisfied that they will have the financial capacity to do that and that sharing that burden equally is in the child’s best interests. The mother is to be responsible for making the arrangements in the first instance and providing the father with appropriate detail and information before he is obliged to pay his half share of the costs by payment back to the mother.
The Orders will also provide for the child to spend holiday and other time with the mother should the mother determine to make visits to Australia other than in those two holiday periods in the Australian Summer and the Swiss Summer. If the mother can do that, I am satisfied it is in the child’s best interests to spend additional time with the mother.
The Orders will reinforce the father’s commitment to having the child attend the German language course at A High School. I consider it is in the child’s interests to ensure that happens if possible. My Orders will actually require the father to do whatever he can do to ensure that happens, if possible. If it is not possible, the father is to ensure the child has private German tuition on a weekly basis.
What might be considered as standard information sharing orders will be made. It is in the child’s best interests that her parents continue to be well informed about her health, education, extra-curricular activities and all contact details. Each parent shall also be entitled to attend the child’s school and extra-curricular activities as that is in her best interests for them to be as involved in those things as is practicably possible in all the circumstances.
I will provide the ICL with opportunity, at his discretion, to meet with the child to explain these Orders to her and conclude his involvement in the proceedings with her. He could, at his discretion, involve Mr M in that process. I find that in the child’s best interests if the ICL considers it appropriate. He will then be discharged in 28 days from the date of these Orders.
Other necessary procedural orders will also be made.
I order as set out at the commencement of these reasons.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 September 2012.

Associate:

Date: 6 September 2012

[2012] FamCA 768

6 September 2012

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