McAuliffe and Davies
[2010] FMCAfam 1481
•16 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCAULIFFE & DAVIES | [2010] FMCAfam 1481 |
| FAMILY LAW – Parenting – short-term defined relocation – consent order for return of parent at conclusion of overseas [employment] – best interests of child – potential risk from dangers in overseas city identified by Department of Foreign Affairs & Trade. |
| Evidence Act1995 (Cth), s.144 Family Law Act1975, s.60B, 60CA, 60CC(2), 60CC(3)(a) – (l), 61DA, 65DAA, 94AAA |
| Ahcraft v Haber [2010] FamCA 6 B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572 |
| Applicant: | MR MCAULIFFE |
| Respondent: | MS DAVIES |
| File Number: | CAC 1457 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 17 November 2010 |
| Date of Last Submission: | 2 December 2010 |
| Delivered at: | Canberra |
| Delivered on: | 16 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Millar |
| Solicitors for the Applicant: | Capon & Hubert |
| Counsel for the Respondent: | Ms J Godtschalk |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
The child, [X], born [in] 2007 (‘[X]’) live with the Respondent Mother.
The parties shall have equal shared parental responsibility for [X].
The Mother be at liberty to relocate with [X] to live in Manila, the Philippines, from [omitted] 2011 until [omitted] 2014.
Within 7 days of request by the Mother, the Applicant Father will do all things and sign all such documents as are necessary to enable the Mother to obtain a passport and any other relevant documents for [X] to be permitted to travel to the Philippines.
During the [employment] period, [X] to spend time with the Father as follows:
(a)in Manila, upon the Father providing 21 days written notice to the Mother, at times and dates to be agreed in writing between the parties;
(b)in Australia, on two occasions each calendar year, for a period of up to 7 days, at dates and times to be agreed in writing between the parties.
During the [employment] period each party will facilitate the child [X] communicating with the Father as follows:
(a)By telephone as agreed between the parties and failing agreement, on at least two occasions per week;
(b)By Skype or other similar forms of communication, as agreed between the parties.
For the purpose of Order 6 above, the Mother will acquire and maintain a working computer, webcam and any other computer programs at her home.
The Mother will keep the Father informed of [X]’s wellbeing and progress, by providing the Father with photographs, school reports and other relevant documents, and by email to the Father on at least one occasion per week.
Within six weeks of the Mother and [X] returning to Canberra in 2014, the Mother and Father will attend Family Dispute Resolution for the purposes of negotiating arrangements for [X] to spend time with the Father.
IT IS NOTED that publication of this judgment under the pseudonym McAuliffe & Davies is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1457 of 2010
| MR MCAULIFFE |
Applicant
And
| MS DAVIES |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16th December 2010, the Court made orders, essentially as sought by the Respondent Mother. What follows are the reasons for those orders.
Superior courts insistently proclaim that there are no such things as ‘relocation cases.’ Rather, such courts maintain that ‘relocation cases’ are merely or simply (but of course importantly) a species of the genus known as ‘parenting cases’ and that there are no particular or unique principles that apply to them other than those set out in Part VII of the Family Law Act1975 (“the Act”).[1]
[1] See, for example, as but one very recent statement in this regard, Cowley v Mendoza (2010) 43 Fam LR 436 at p.443 [31] (Murphy J). For recent appellate discussion, see the Full Court decisions in Starr & Duggan (2009) FamCAFC 115 (Boland, Thackray & Watts JJ) at [33] ff., and McCall v Clark (2009) 41 Fam LR 483 at [57] – [62] & [69] cf. Kirby J’s elaboration of nine principles that apply to “relocation of a child’s residence – general principles” in AMS v AIF (1999) 199 CLR 160 at pp.206-211 [141] – [150], admittedly in a different legislative context to that in which the decisions of the Family Court of Australia to which I have referred have been made.
Accepting, unquestioningly, the correctness of this direction/ admonition, nonetheless, learned text writers and those responsible for various ‘practice text-books’ continue to deal with ‘relocation cases’ as a discrete field of inquiry, often, but not always, in the context of parenting cases and the jurisprudential principles applicable thereto.[2]
[2] See, for example, the following representative sample of leading texts: P. Parkinson, Australian Family Law In Context: Commentary & Materials, (Fourth Edition) (Sydney: Lawbook Co., 2009) “Relocation Disputes” [23.140] – [23.170]; B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context, (Melbourne: Oxford University Press, 2008) “Relocation Disputes” [6.9.4]; L. Young & G. Monahan, Family Law in Australia, (Sydney: LexisNexis Butterworths, 2009) “Relocation Cases” [8.120] – [8.129].
It is also not inapt to suggest that relocation cases have spawned, and continue to provide, a fertile field of academic inquiry such that one might be tempted to suggest that something of a cottage industry has developed in attempts to divine and analyse how and why decisions are made (and the facts, factors and principles that led to the particular result) in such cases.[3] This is so, notwithstanding many (respectfully) unequivocal, straight-forward and otherwise pellucid observations as to what happens in such trials. Thus, for example, in AMS v AIF, Kirby J simply observed that there is, in such cases, a “large element of judgment, discretion and intuition.”[4]
[3] The following is but a small sample of important studies: J. Behrens, “U v U: The High Court on Relocation,” (2003) 27 Melbourne University Law Review 572; P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145; P. Parkinson, “The Realities of Relocation: Messages from Judicial Decisions,” (2008) 22 Australian Journal of Family Law 35; P. Easteal & K. Harkins, “Are We There Yet? An Analysis of Relocation Judgments in Light of Changes to the Family Law Act,” (2008) 22 Australian Journal of Family Law 259. Indeed, studies continue apace – thus: B. Horsfall & R. Kaspiew, “Relocation in separated and non-separated families: Equivocal evidence from the social science literature,” (2010) 24 Australian Journal of Family Law 34; J. Behrens, B. Smyth & R. Kaspiew, “Outcomes in relocation decisions: Some new data,” (2010) 24 Australian Journal of Family Law 97; R. Chisholm, “Unacceptable risk and relocation issues: Partington v Cade,” (2010) 24 Australian Journal of Family Law 115.
[4] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[5]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[5] AMS v AIF 199 CLR at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
Somewhat more recently, Warnick J said:[6]
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[6] B & B (2006) FamCA 1207 at [1]. Warnick J was sitting as the Full Court, pursuant to s.94AAA of the Act.
Respectfully, I agree with his Honour, and the earlier statements of the High Court to which I have referred.
In a number of respects, it seems to me that the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion which are the warp and woof of all trials. Such matters were more elegantly and fulsomely put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[7]
On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[7] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
Two other preliminary comments are important to record here also. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[8]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[8] Wiley & Wiley (2008) FamCAFC 153 at [70].
Secondly, in U v U, Kirby J emphasised the importance to consider the long-term interests of the child rather than just focusing on the short term.[9]
[9] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour said: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
All of the comments I have just quoted apply to the facts, circumstances, principles and discretion in the current proceedings.
This case might in fact be categorised as a sub-species of relocation/parenting cases. This is so because the respondent Mother of three year old [X] seeks the imprimatur of the Court to take up [employment in] the Philippines for a defined period of three years. It is to commence in [omitted] 2011, by which time [X] will, of course, be 3½. Although the [position] could be slightly extended, Ms Davies confirmed to the Court that she would consent to an order whereby she would be compelled to return at the end of her three-year [position], thereby fore-going the possibility of it being extended.
Thus, whereas most ‘relocation cases’ are conducted on the basis that there will be a permanent move by one parent to a distant locality, never to return, here we have a situation where there is certainty of return, and within a relatively short period of time. Moreover, the evidence (noted further below) is that, in addition to her annual leave, as part of the terms of her [employment], Ms Davies is entitled to two ‘reunion trips’ each year. Thus, there will be regular return visits to Australia for [X] to spend time with his Father and other significant members of his family, albeit with some months in between these visits. As indicated later in these reasons, in between these home visits regular “contact” will be accommodated by prescribed telephone and internet/Skype communication between Father and son.[10]
[10] In this regard, I recall Kay J’s observation in Godfrey v Sanders [2007] FamCA 102 at [36], where his Honour said: “Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” This statement was approved and applied by Young J in Davis v Davis (2008) 38 Fam LR 671 at p.741 [380] – [382]. See also the comments of Dessau J in relation to a long-distance and meaningful relationship in M v S (2007) 37 Fam LR 32 at [45]: “I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.” Emphasis added. In this regard, the important remarks of Brown J in Mazorski v Albright (2008) 37 Fam LR 518 at pp.526 – 527 [24] – [26], and their approval by the Full Court in McCall v Clark (2009) 41 Fam LR 483, in relation to the critical subject of “meaningful relationship” are set out in full later in these reasons.
In his original application, Mr McAuliffe proposed orders in the alternative, which included orders sought for his time with [X] in the event that the Court permitted Ms Davies to take up her [employment]. On the morning of the trial, Counsel for Mr McAuliffe indicated that those alternative orders were no longer proposed for the Court’s consideration. Accordingly, subject to further detail set out later in these reasons, Mr McAuliffe opposed Ms Davies taking up the [employment] with [X]. He was content for her to do so, but it would have to be, on his view, with [X] remaining in his care.[11]
[11] For completeness, I should note that consent orders were entered into by the parties on 8th November 2010, which deal with the time that [X] will spend with his Father over Christmas and thereafter for the immediate future.
For the reasons which follow, in my view, Ms Davies should be permitted to take up the [position], and that [X] should relocate and continue to reside with his Mother during the term of her overseas [employment].
These reasons proceed as follows: (a) proposals by each of the parties; (b) evidence of the parties; (c) evidence of the Family Consultant, Ms L; (d) outline and application of legal principle; (e) resolution.
A. Proposals of the Parties
The Father sought the following orders:
1. That the parents have shared equal parental responsibility for the child [X] born [in] 2007.
If both parties live in the Australian Capital Territory
2. That the child spend time with the Father as follows;
a. Commencing in January 2011, for a period of 6 months, each alternate weekend from 5:30pm Friday until 5pm Sunday;
b. Thereafter for a further period of six months;
i. Each alternate weekend from 5:30pm Friday until 9am Monday morning;
ii. In the alternate week that the father is not spending time with the child from 5:30pm Thursday until 9am Friday.
c. Thereafter for a further period of six months;
i. Each alternate weekend from 5:30pm Friday until 9am Monday morning;
ii. In the alternate week that the father is not spending time with the child from 5:30pm Wednesday until 9am Friday.
d. Thereafter on a week about basis with change over to occur each Monday at 9am.
e. For the Christmas period, commencing in 2011 and every odd numbered year thereafter from 5:30pm Christmas eve until 2pm Christmas day, and every even numbered year from 2pm Christmas day until 5 pm Boxing day.
f. Each year on the Father’s birthday, if not otherwise in the father’s care from 5pm until 7pm.
g. Such other times as maybe agreed between the parties.
3. That notwithstanding these Orders the child live with his mother from 9am until 5pm each Mother’s Day, and with this Father from 9am until 5pm each Father’s day.
4. That on the Child’s birthday each year the parent with whom the child is living shall make him available to spend time with the other parent for a period of at least 2 hours at a time to be agreed between the parents, but failing such agreement from 5.00pm until 7.00pm.
5. That the child spend time with the mother on her birthday if not otherwise in her care from 5pm until 7pm.
6. That neither party remove or attempt to remove the child, from the commonwealth of Australia without the other parties consent.
If the mother is to relocate without the child
7. That the child live with the father.
8. That the child spend time with the mother as follows;
a. In Australia for the duration of all 4 weeks in which the mother will be present in the country.
b. In Manila for the duration of all terms school holiday periods.
c. For half the Christmas school holiday period.
d. Such other times as maybe agreed between the parties.
9. That for the purposes of Order 8, the parties equally meet the costs of the contact visits.
10. That the mother have telephone contact with the child at 6pm each Wednesday. To that end, the father is to do all things in his power to facilitate that contact including enabling and encouraging the child to receive the mother’s telephone call.
The Mother sought the following orders:
1. The child, [X], born [in] 2007 (“[X]”) live with the Respondent Mother.
2. The Mother be at liberty to relocate with [X] to live in Manila, the Philippines from [omitted] 2011 until [omitted] 2014 (the [employment] period).
3. Within 7 days of request by the Mother, the Applicant Father will do all things and sign all such documents as are necessary to enable the Mother to obtain a passport and any other relevant documents for [X] to be permitted to travel to the Philippines.
4. Until 31 December 2010, [X] will spend time with the Father at such times as may be agreed between the parties, and failing agreement:
4.1 Each alternate weekend from 10am on Saturday until 4pm on Sunday;
4.2 In the alternate week, from after childcare on Wednesday afternoon until the commencement of childcare on Thursday morning; and
4.3 From 2pm Christmas Day until 4pm on Boxing Day.
5. From 31 December 2010 until the Mother leaves Australia to travel to the Philippines in [omitted] 2011, [X] will spend time with the Father at such times as may be agreed between the parties, and failing agreement:
5.1 Commencing on Friday 31 December 2010, each alternate weekend from 4:30pm on Friday until 4pm on Sunday; and
5.2 In the alternate week, from after childcare on Wednesday afternoon until the commencement of childcare on Thursday morning.
6. During the [employment] [X] to spend time with the Father as follows:
6.1 in Manila, upon the Father providing 21 days’ written notice to the Mother, at times and dates to be agreed in writing between the parties;
6.2 in Australia, on two occasions each calendar year, for a period of up to 7 days, at dates and times to be agreed in writing between the parties.
7. During the [employment] period each party will facilitate the child [X] communicating with the father as follows:
7.1 By telephone as agreed between the parties and failing agreement, on at least two occasions per week;
7.2 By Skype or other similar forms of communication, as agreed between the parties.
8. For the purpose of Order 7 above, the Mother will acquire and maintain a working computer, webcam and any other computer programs at her home.
9. The Mother will keep the Father informed of [X]’s wellbeing and progress, by providing the Father with photographs, school reports and other relevant documents, and by email to the Father on at least one occasion per week.
10. Within six weeks of the Mother and [X] returning to Canberra in 2014, the Mother and Father will attend Family Dispute Resolution for the purposes of negotiating arrangements for [X] to spend time with the Father.
B. Evidence of the Parties
Evidence of Mr McAuliffe: At par.21 of his affidavit filed 9th September 2010, Mr McAuliffe outlined his “three major concerns” if Ms Davies relocated to Manila for [employment over] the next three years. Those concerns are:
·“The distance between Manila and Canberra is such that the status quo with respects [sic] to the time [X] and myself spend together would be unable to continue. I believe that this would be detrimental to our relationship.
·I have concerns about the safety of [X] if he were to relocate to Manila.[12]
·The fact that although the Philippines is a member to the Hague Conference on Private International Law, it is not a signatory to either of the two conventions relating to children.”[13]
[12] Mr McAuliffe annexed to his affidavit a Travel Advice from the Department of Foreign Affairs and Trade (“DFAT”) for the Philippines, dated 9th September 2010. I deal briefly with the Travel Advice later in these reasons.
[13] As a matter of detail, the “two conventions relating to children” were not specified or otherwise particularised.
In the light of these concerns, the following may be noted from his cross-examination.
Importantly, and without any hesitation, Mr McAuliffe confirmed that Ms Davies was a “very loving, careful and protective Mother.” Likewise, he readily agreed that he has no concerns – and does not raise any for the purposes of these proceedings – in relation to Ms Davies’ parenting of [X].[14]
[14] Transcript (17th November 2010) p.11.
In the same vein, he agreed, without qualification, that Ms Davies would be “extremely vigilant” regarding [X] if Ms Davies relocated to the Philippines for [employment].
Mr McAuliffe confirmed that he was aware of the security and living arrangements that would be in place in Manila for Ms Davies and [X]. They would include an apartment with 24 hour concierge and elevator attendants, a live-in nanny, and a full-time driver to transport Ms Davies and [X] (and anyone, it would seem, staying with or nominated by Ms Davies).[15] According to Ms Davies, and not denied by Mr McAuliffe, the nanny has been working for or with the Australian Embassy in Manila. I infer from this that the ‘live-in nanny’ would have been vetted or otherwise approved, in some shape or form, by the Australian Embassy.
[15] Transcript (17th November 2010) pp. 56 & 57.
He agreed, and understandably so, in the light of these measures (and others noted later), and given Ms Davies’ diligence to her and [X]’s safety, that she would ensure that [X] was safe during the time of her [employment in] Manila.[16]
[16] Transcript (17th November 2010) p.12.
Mr McAuliffe was asked to clarify what he meant by par.21(c), quoted above, in relation to his concerns regarding the Philippines. He said: “My suggestion there is if circumstances were to change, and for some reason [Ms Davies] may have decided to stay in the Philippines or for whatever reason, it would be difficult for me to be able to uphold any orders that may ….”
His exchange with Ms Godtschalk, for Ms Davies, proceeded as follows: “Q: Are you seriously suggesting that Ms Davies would deprive her son, [X], of a relationship with you? A: If circumstances change, it could happen. That’s a fear I have.”[17]
[17] Transcript (17th November 2010) p. 12
Mr McAuliffe was pressed to explain what those circumstances might be. He was unable to elaborate or to identify any. Indeed, in answer to a question posed by me, he confirmed that he did not think that the risk he said he feared was a reasonable one.[18] I pause here to observe that in relation to this evidence, and other matters noted later, I had the reasonably strong impression that Mr McAuliffe was almost looking for reasons to oppose Ms Davies taking [employment] in Manila with [X]. While I do not doubt his ‘concerns’ in a general sense, he struck me as not being as genuine in the degree of concern and opposition that he professed. I come back to similar matters shortly.
[18] Transcript (17th November 2010) p.13.
Mr McAuliffe also agreed that, for the most part or, in his words, ‘to a certain extent’, the relationship between [X]’s parents was flexible. This was so notwithstanding that Mr McAuliffe sought to assert that it was more a case of him taking what he could get in terms of time with [X] as prescribed by Ms Davies.[19]
[19] Transcript (17th November 2010) pp.14-15.
Indeed, in the Family Report from Ms L, at [13], she stated: “It is apparent that Ms Davies has very much facilitated [X]’s relationship with his father since infancy and has, in fact, initiated extensions of time they spend together. Mr McAuliffe acknowledges this to be the case and would expect that Ms Davies will continue to facilitate the relationship should relocation occur.”
In cross-examination, Mr McAuliffe agreed that Ms L accurately recorded what he had told her.[20] In the light of his acknowledgement of the accuracy of what Ms L recorded, my previously expressed reservations about Mr McAuliffe’s evidence were confirmed further.
[20] Transcript (17th November 2010) p.15.
Indeed, in the light of his evidence about how good a Mother Ms Davies is to [X], and how she has facilitated [X]’s relationship with his Father, the strength of the attack on Ms Davies’ capacity and willingness to promote [X]’s relationship with his Father (noted later in these reasons) was, in my view, unwarranted. It is one thing to test evidence; it is another to challenge it in the face of clear and unequivocal evidence to the contrary having just been put to the Court by Mr McAuliffe under oath.
The following exchange between Counsel for Ms Davies and Mr McAuliffe, in my view, is also important. It speaks for itself. In the course of discussions regarding who initiated [X] spending time with his Father, the exchange went as follows:[21]
[21] Transcript (17th November 2010) p.16.
What Ms Davies says at paragraph 24 of her affidavit is that:
I disagree with paragraph 16 of Mr McAuliffe’s affidavit that he initiated the discussions in relation to [X] commencing overnight visits with him. On 1 June 2010 I wrote to Mr McAuliffe inviting him to consider having [X] for overnight visits. Prior to this occasion Mr McAuliffe had never discussed with me his wish to commence overnight visits with [X].
Did you read that?‑‑‑Yes.
And that’s in fact what – the very email that she sent to you – and, your Honour, it’s D32 to Ms Davies’ affidavit of 23 September – this is what she says:
Hi, just thought I’d touch base on a few things about [X] at the moment, and although you haven’t mentioned or approached the subject, look forward – look toward overnight visits for you guys. I really would have preferred this to be something you had asked me. Instead, I’ll go ahead and put it out there to see if it’s something you’ve thought, been planning for, or feel you’re ready to take on.
Do you remember her writing that to you?‑‑‑Yes.
So it wasn’t a situation where you’d been urging her to go into overnight visits and, in fact, you write back and say, “Well, yes, I haven’t even got a bed for him yet.” Do you remember doing that?‑‑‑Yes.
And you say:
Thanks for the update. I’m really looking forward to having [X], but – [X] for overnight visits.
This on 2 June 2010, Mr McAuliffe, isn’t it?‑‑‑Yes.
Continuing:
I haven’t got him a bed yet, but I’ll get him one soon.
That’s right?‑‑‑That’s right.
The Father works long hours. He is involved in the expansion of [occupation omitted]. His work hours are from 7am until 6pm. He confirmed in an email to Ms Davies that his work was “hectic.”[22] He has not spoken to his employer to inquire about changing his hours of work, and this is so even though his original Application sought orders whereby he would have [X] from 5.30pm on Thursday until 9am Friday each alternate week. Indeed, he confirmed that he did not know if such a commitment was “plausible” because “I still don’t know if I could fit it around work.”[23]
[22] Transcript (17th November 2010) p.17.
[23] Transcript (17th November 2010) p.18.
This discussion about his work commitments and availability to care for [X] continued for a little time in the course of cross-examination. It included the following exchange with the Bench:[24]
[24] Transcript (17th November 2010) pp.19-20.
But from what you’re saying, in response to Ms Godtschalk, it seems to suggest – and please correct me if I’m wrong – that on the one hand you’re saying that you’re in a position to care for [X] but at this stage, if I understand correctly, you haven’t yet made any inquiries of work as to how you would fit care of [X] into your work commitments. Is that fair to say?‑‑‑That is fair to say. I am currently working on a project sort of outside my usual workplace. I’m still employed by [omitted], and it’s a large [work] project and it’s got quite taxing hours and so I am ‑ ‑ ‑
And, sorry, how long is this project?‑‑‑This project – potentially for the next 12 months. I am confident that my employer, [omitted], would support – and they have stated to me previously that they have – would support any family commitments and they are really good. However, the project I’m working on might not be the case and that would be – and it’s a funny situation I’m in because I am still employed by [omitted], however, I’m working for an alliance, so who to report to on that is quite complicated and who would agree to things. That’s why I’ve been hesitant in approaching work about this because there’s sort of uncertainty that’s been going on in the last three months, I suppose, since this has all come up. It’s been quite hectic and ‑ ‑ ‑
Well, it sounds like it’s hectic on all fronts, would that be fair to say?‑‑‑Yes, yes.
Again to pause briefly: for my part, there being no challenge to this evidence in relation to his significant work commitments, at least for the next year, I would have significant doubt as to Mr McAuliffe’s availability to care for [X] even if Ms Davies did not temporarily move to Manila. And this takes no account of any extension to his current major work project, due to delays and other vagaries that are not uncommon with major [companies].
As I have noted earlier, the day before the trial, McAuliffe filed an Amended Initiating Application and supporting affidavit. In those documents, for the first time, he suggested that he would become [X]’s primary carer if Ms Davies went [to Manilla for employment]. Mr McAuliffe confirmed that he knew that Ms Davies would not take up the [employment] without [X]. He also confirmed that he understood that his proposal to become [X]’s primary carer could be viewed negatively by Ms Davies. He acknowledged that this amended application was in the context of Ms Davies having been [X]’s primary carer since birth and that Mr McAuliffe’s time with [X] had recently moved to one overnight per fortnight.
Mr McAuliffe also said that he would sacrifice his job to look after [X] if he became his primary carer. While not doubting the earnest intention of Mr McAuliffe, I confess, again, to having some doubt about how well thought through his parental responsibilities were.
For example: if Mr McAuliffe is prepared, as he says, to sacrifice his work project to care for [X], one might not unreasonably ask also why would he not be prepared to keep his job and in the course of it, take some time off to visit his son in Manila? Respectfully, it seems to me that both things [job, and visiting [X]], particularly in the long term, would be in [X]’s - and his Father’s - best interests.
Mr McAuliffe confirmed that his involvement in [X]’s life has been limited. Thus, he confirmed that (a) he had never attended with Ms Davies to the maternal/child/health care clinic, (b) he had never attended [X]’s childcare centre, (c) he did not know the name of the childcare centre, (d) he has never taken time off work to care for [X] when he has been ill, (e) he has never taken time off work for any other reason to care for [X], (f) he does not know the name of [X]’s doctor or the surgery he attends, and (g) he had taken Ms Davies’ word in relation to keeping up [X]’s immunisations, although he does not know, has not checked, nor has he asked Ms Davies what the regime is for [X]’s immunisations.[25]
[25] Transcript (17th November 2010) pp.21-23.
Mr McAuliffe also confirmed that Ms Davies has provided him with all information regarding [X]’s state of health such as immunisations, or any other medical issues.
In somewhat late-breaking news (to speak colloquially), in his Amended Application filed the day before the trial, Mr McAuliffe sought orders that provided for a move, over an 18 month time-frame, to a shared care arrangement with Ms Davies, and this notwithstanding that (a) Ms Davies has been [X]’s primary carer all his young life, (b) [X] now spends only one overnight per fortnight with his Father, and (c) Mr McAuliffe (as I have already noted) has yet to make any inquiry of his employer as to any flexibility in his work hours, and in circumstances where his work commitments for the next 12 months or so are and will remain, on his own evidence, very demanding. Mr McAuliffe confirmed that a shared care arrangement was not envisaged in his original application.[26]
[26] Transcript (17th November 2010) p.24.
Given that Ms Davies has been [X]’s primary carer since birth, Mr McAuliffe properly and readily acknowledged that she had regularly taken off time to care for [X], including maternity leave.
He also confirmed that he had thought seriously about the orders set out in his Amended Application, which was filed the day prior to the trial, including the alternative orders sought in the event that Ms Davies was permitted to relocate with [X] for her [employment].[27] As already noted, those orders were withdrawn on the morning of the trial on the basis that they were impractical, in Mr McAuliffe’s view, to promote a meaningful relationship with [X]. In such circumstances, again one might ask, not unreasonably, what degree of thought was in fact given to the orders sought in the Amended Application when they were withdrawn only t`he day after they were filed?
[27] Transcript (17th November 2010) p.26.
Mr McAuliffe said that in the event that Ms Davies was permitted to relocate with [X] for the duration of the [employment], and given that there were no proposals put before the Court for him to spend time with [X] in Manila, he could envisage spending maybe two weeks per year in Manila.[28] He also noted that Ms Davies has offered accommodation on any visit Mr McAuliffe might undertake to Manila to visit [X].
[28] Transcript (17th November 2010) p.27.
Mr McAuliffe conceded that if Ms Davies went to Manila without [X] it would have a “huge” impact on [X]. Indeed, Mr McAuliffe said that if [X] was with him, and his Mother was in Manila, and if [X] was fretting so much because he was missing his Mother, he would try to rectify the situation which may include returning [X] to Ms Davies in the Philippines.[29]
[29] Transcript (17th November 2010) p.29.
The Father’s cross-examination concluded with the following exchange with me:[30]
[30] Transcript (17th November 2010) pp.29-30.
But you’ve already said, have you not, that it would have a huge impact. How and when would you recognise or would assess, look, this isn’t worth it for [X]’s sake and therefore it’s better for him to go back and live with his mother?‑‑‑It would be completely dependent on his reaction to the changes.
If you’re at work and he’s in care, what sort of monitoring are you going to be able to offer?‑‑‑Well, I’d – no different to if – well, all the time he’s not in care I would be available to him.
But if you’re working from 7 until 6, that’s a long time for any child to be in care, isn’t it?‑‑‑Yes. But, like I said, if I had him full time I’d have to negotiate better working hours to facilitate looking after [X], because I couldn’t see it working at those hours, and that would – that was my suggestion when I said I would sacrifice working on the project to facilitate caring for [X].
Can I ask you this: would you – just say for the purposes of our discussion where you say that you would, as it were, sacrifice your involvement in the project that you’re currently involved in, if you were to sacrifice that, could that have negative – some negative impact upon your work and promotions and those sorts of thing?‑‑‑Possibly. I don’t think I’d go backwards, but I may not ‑ ‑ ‑
Go forward?‑‑‑ ‑ ‑ ‑ go forwards as such.
Or go forward as quickly?‑‑‑Yes.
And do you say that that’s a factor in any shape or form that I should take into account in this matter, because, as you know, that amongst other things that I’m being asked to consider that as one of a range of factors perhaps in relation to Ms Davies?‑‑‑Yes, from very similar ask.
So you understand that there are, to put it colloquially, that there are perhaps risks for you professionally in relation to your proposal regarding parenting in the same way that there are professional risks for Ms Davies? Do you accept that as sort of general statements?‑‑‑Generally, yes.
Evidence of Ms Davies: By way of overview, it might be observed that there were two lines of attack in relation to the Mother’s evidence. The first was that she was, in fact, a person who controlled, rather than facilitated, how much time Mr McAuliffe was involved in [X]’s life. This was to focus attention or to suggest that the relationship between [X]’s parents was neither as congenial nor as co-operative as Ms Davies indicated, nor in a number of respects how Mr McAuliffe perceived the relationship as might be taken from his answers in the course of cross-examination. Among other things, it followed (so it was suggested or submitted) from this that Mr McAuliffe could not be remotely certain that Ms Davies would promote (let alone be able to promote) his relationship with [X] if relocation was to be permitted.
The second line of attack related to the lack of safety for [X] with his Mother in Manila, as well as laying a foundation for the lack of benefit for a child of [X]’s age to appreciate being in Manila, as opposed to an older child who would more likely be able to appreciate the various cultural and other differences of being in a foreign country. Both of these lines of inquiry and contest were also the primary issues of concern put to the Family Consultant, Ms L, as is seen later in these reasons.
Before dealing with challenges to Ms Davies’ capacity to promote [X]’s relationship with Mr McAuliffe, Counsel for the Father highlighted, with which Ms Davies basically agreed, that [X] has lived with his Mother and her family since his birth. Thus, [X] was very familiar with his maternal Grandparents and his aunt, Ms Davies’ sister, Ms H. [X]’s life and routine has, thus far, centred around Ms Davies and her family. It is a place of safety, routine and familiarity.[31]
[31] Transcript (17th November 2010) pp.31-34, 42, 48 & 49.
Ms Davies agreed with the proposition from Counsel for the Father that her move to the Philippines was a ‘work choice’ of hers, and it was relevant to her income (although this seemed to be somewhat qualified later in her evidence). But for those two things, she confirmed that she would remain in Canberra.[32]
[32] Transcript (17th November 2010) p.34. Her Application Form for the [employment overseas] became Exhibit B.
It is as well to note the following exchange between Ms Davies and Counsel for Mr McAuliffe. In my view, it sums up a particular ground of attack on the nature of the relationship between [X]’s parents, with its alleged (or feared) consequences for the future:
From what his Honour said about some of the terrible things we sometimes hear about in higher conflict cases. I want to suggest to you that a lot of what passes for agreement here has really been that you’ve said what’s going to happen, and my client has accepted it. What do you say to that?‑‑‑I would agree, but knowing that any motivation was how I felt [X] was coping, and what [X] may have needed at that time, or how he was reacting. That’s always been my first concern, before I thought about what I should offer.
I’m not going to reasons just yet?‑‑‑Okay.
But the result, looking at result, was like this I suggest and has been for a long time, that whatever my client might have said or suggested, that the way it’s worked is that you’ve said, “I think this is what should happen,” and then he’s accepted it?‑‑‑Yes, or I’ve said it first, not that I’ve responded saying I think this instead. I’ve said it initially.
Later, Ms Davies agreed that Mr McAuliffe has been co-operative with her, and that she has had the decision-making power.[33]
[33] Transcript (17th November 2010) p.44.
A range of questions followed in relation to [X]’s name, his baptism and arrangements for it, and in relation to a parenting plan.[34] The discussion in relation to the parenting plan is also instructive. It went as follows:
[34] Transcript (17th November 2010) pp.37-40.
MR MILLAR: My client put a parenting plan to you, didn’t he, as a proposal for time to be spent with [X]?‑‑‑Yes, in response to one that I had drafted initially.
All right. You wanted to just add that, did you?‑‑‑Sorry.
I was just asking you about his plan?‑‑‑Yes, he did.
He put a plan to you?‑‑‑Yes, he did.
You didn’t agree with his plan, did you?‑‑‑I didn’t sort of agree some – with the timeline of maybe the dates. I didn’t agree with – I agreed with the contents and, you know ‑ ‑ ‑
You agreed with the content?‑‑‑The content of the time spent together, and the hours and things, but not at the ages that perhaps he was suggesting.
Yes. And the point of that was you wanted to slow down, be one way of putting it, the increases in time, didn’t you?‑‑‑It was space them better to make sure that [X] was coping in what I thought – from what I sort of read in terms of small children, and getting their attachment to their primary caregiver.
Right?‑‑‑One suggestion said that at seven weeks old he would be able to take time away from me for a block of time when I was still breastfeeding him, and I didn’t feel that appropriate. Obviously, eventually, yes, but that was ‑ ‑ ‑
What I put to you was that the effect of the changes you wanted was to slow down the moving to the greater periods of time?‑‑‑Yes, then – if that’s how ‑ ‑ ‑
So it’s spaced out longer in time?‑‑‑Yes.
And that’s because you took the view, didn’t you, that from [X]’s point of view, and still the case, that you want to not have dramatic change for him?‑‑‑Yes.
You’d want to be sure that he’s ready before you make changes in his life that are significant to him?‑‑‑Yes.
Both with regard to time, time to be spent with another person, in particular, his father, but also time spent absent from you?‑‑‑Yes.
With regard to your parents, do either of them work?‑‑‑They both do, yes.
Right. Full time?‑‑‑My mum works part time, and my dad is full time, yes.
Right. And at the moment while you are in Canberra, is it the case that you take [X] to childcare in the morning?‑‑‑Yes.
And who collects him in the afternoon?‑‑‑I do.
Ms Davies confirmed that [X] currently has three childcare workers at the childcare centre; he has had these carers since the beginning of the year. I infer that he has had different childcare workers in other years. He has been at this childcare centre since 2008. The centre is located in the precincts of DFAT, Ms Davies’ employer.
While it was suggested that this centre and its carers, too, were a source of familiarity for [X], it might also be asked: given that [X] has had other carers in previous years, might it not simply be a ‘variation on a theme’ (so to speak) if [X] is cared for by a nanny in Manila as well as attending a childcare centre, which is also in a secure, safe setting?
In Ms Davies’ ‘orders sought’ it will be recalled that she seeks that Mr McAuliffe give her 21 days notice in the event that he proposes to visit [X] in Manila. In the light of that order sought, it was suggested to Ms Davies that this would [again] put all control in relation to the Father’s access to [X] solely within the province of Ms Davies, which she could unilaterally thwart. She said that she would agree with whatever arrangements were put in place regarding any visit by Mr McAuliffe to Manila.[35]
[35] Transcript (17th November 2010) pp.43 & 44.
Counsel for Mr McAuliffe also expressed concern to Ms Davies that, because the parental relationship has never involved a de facto or any other circumstance whereby the parents have lived together, it could be the case that Ms Davies could ask Mr McAuliffe to leave her residence. To this Ms Davies responded consistently that “… I was inviting him [Mr McAuliffe] to stay, because he needs to get to spend time with [X] and that’s why I would want to facilitate that.” She also confirmed that should Mr McAuliffe travel to Manila to visit [X], he would have access to the secure travel arrangements that would otherwise apply to Ms Davies, namely a car and driver.[36]
[36] Transcript (17th November 2010) pp.45 & 56-57.
Accepting that human existence, where-ever lived, invariably carries with it the unforeseen, and the unexpected, and that human weakness and foibles of one kind or another are not infrequently on display in families of all kinds, for my part I accept both the genuineness of Ms Davies’ clear offer for Mr McAuliffe to live in her apartment in Manila with [X] if and when-ever he visits, as well as her continued general intention to facilitate [X]’s relationship with his Father. The history of [X]’s life thus far, in my view, supports such a finding. On the other hand, as I have previously indicated, I had the clear impression that Mr McAuliffe either exaggerated his concerns for [X] going to Manila with his Mother, and or (the similar point stated differently) that he did not have the degree of concern, or feel that concern as genuinely, as he professed.
Concern was also expressed in relation to the capacity of [X] to engage in any meaningful way in telephone calls from Manila with his Father, and for that matter, even using Skype or similar technology. Leaving to one side that Ms Davies said that she would accept the cost of initiating such things,[37] (a) the same issues could arise if Ms Davies was [employed in] Perth (which is on the same time zone as Manila) or some other place outside of Canberra, and (b) the line of questioning in this regard seemed to assume, or at least not always to take account of the fact that [X] is always growing. Thus his capacity to engage and appreciate speaking with his Father from Manila (or anywhere else) is not static; it is more likely than not that [X]’s capacities, on a wide variety of matters, is likely always to improve over time. Indeed, later questions assumed that [X]’s capacity to deal with change and unfamiliar surroundings would increase as he got older.[38]
[37] Transcript (17th November 2010) p.46. I readily accept the genuineness of Ms Davies’ ‘offer’ in this respect.
[38] Transcript (17th November 2010) p.51.
In the course of Ms Davies’ [employment] she will be entitled to four weeks annual leave as well as an extra nine days by way of ‘reunion leave.’ Ms Davies confirmed that she would make two trips each year back to Canberra, and likely extend those trips under the ‘reunion leave’ entitlement.[39]
[39] See, for example, among a number of places, Transcript (17th November 2010) pp. 61 & 66.
Ms Davies proposed that she would return to Australia, which would include the ‘reunion trip extension’, approximately every six months or thereabouts.[40]
[40] Transcript (17th November 2010) p.66.
In relation to the safety of living in Manila Ms Davies pointed out that the Travel Advice from DFAT placed Manila in the ‘moderate level’, which required a ‘high level of caution.’
Given the alarming number and frequency of news reports of civil unrest, terrorist attacks, and other discord around the world, the Court may take some sort of judicial notice of the general dangers associated with international travel.[41] In this regard, I simply note for example only (but do not place any weight on) that this level of ‘travel advice’ from DFAT is, as Ms Davies stated, in fact mid-range; it does not advise either (a) against travel or (b) to reconsider the need to travel. It is but one level above travel to places such as the United Kingdom, Italy and the United States.
[41] Cf. s.144 Evidence Act 1995 (Cth).
For example, from even a casual glance at other prominent destinations as advised by DFAT, not too dissimilar information regarding risks is noted, for example, in relation to Rome, thus:[42]
We advise you to exercise caution and monitor developments that might affect your safety in Italy because of the risk of terrorist attack.
Pay close attention to your personal security and monitor the media for information about possible new safety or security risks.
[42] See the DFAT site: >
There is no doubt that there are more critical warnings in relation to travel, particularly in southern regions of the Philippines, as Counsel for Mr McAuliffe stressed. The DFAT Travel Advice makes this plain. However, there is no suggestion that Ms Davies plans on visiting such locations either as a tourist or as part of her [employment]. Her job is located [in] Manila. Moreover, as Mr McAuliffe readily acknowledged, Ms Davies is a very attentive and protective Mother to [X]. That being so, it is difficult to see that she would knowingly travel to any place, in the Philippines or elsewhere, if it was likely to pose a relevant risk to [X].
Ms Davies acknowledged that DFAT warned of the risks to tourists going to places like shopping malls. Likewise, she acknowledged that, given his age, [X]’s capacity to recognise or appreciate that he was in Manila, or indeed any other foreign city, was limited.[43]
[43] Transcript (17th November 2010) p.51.
There was some contest with Counsel as to what [X] might be able to appreciate from living in Manila. Ms Davies suggested that having daily experience with a nanny from the Philippines would be a significant experience, and suggested (although there was no formal evidence one way or the other about it) that [X]’s engagement with other children in the [secure] childcare facility in Manila would also likely be another form of different cultural engagement.[44]
[44] Transcript (17th November 2010) pp.52 & 53. Discussion of the secure child-care facility is located in the Transcript (17th November 2010) p.58.
Contrary to the suggestion put to her that [X] would not be able to appreciate anything about his time in a city like Manila, Ms Davies said that she thought [X] would appreciate, to the degree that he could, quite a number of things, particularly in his engagement with other families.[45]
[45] Transcript (17th November 2010) pp.53-54.
Ms Davies also confirmed that she has good communication with Mr McAuliffe. This is so notwithstanding that she did not tell him about her application for [employment in] Manila. She said that she did not intend advising him until after she knew of the success or otherwise of her application. She did not disregard that [employment in Manila] would cause him concern, even though her affidavit evidence indicated that she thought he would agree to [her employment].[46]
[46] Transcript (17th November 2010) pp.54 & 55.
At a little length Ms Davies was questioned about her purchase of a residence in Canberra. She confirmed that (a) it was, in effect, a purchase ‘off the plan’, (b) a 5 % deposit had been paid, and (c) the completion of the purchase and mortgage payments are not contingent on her [employment in] Manila.[47]
[47] Transcript (17th November 2010) pp.59-61.
Finally, I explored briefly with Ms Davies other options in relation to [X]’s care, such as whether it might be possible (or practical) for him to spend six months with his Mother and six months with his Father. With obvious and significant feeling/emotion, Ms Davies stated that she would not/could not leave [X] behind in Australia while she went to Manila.[48]
[48] See Transcript (17th November 2010) pp.70-71.
Evidence of Ms L: Ms L’s evidence may be summarised as follows.[49]
[49] Ms L became Exhibit A.
Ms L confirmed that she was aware that (a) the parties had never lived together and (b) [X] had known only one home, namely with his Mother in his maternal Grandparents’ residence.
She was questioned about her Report that [X]’s parents confirmed with her that he ‘adjusts well to change.’ She was asked firstly about what actual changes he had experienced, and the range of changes he would likely experience if his Mother was permitted to move to Manila.
In the course of her answers she said that the changes envisaged, and [X]’s adaptability to them, would obviously depend on how much “engagement” he would be able to keep up with various members of his family. In this regard she agreed with the proposition put to her that engagement with his relatives (especially his maternal Grandparents) would be rather more disembodied if that was to occur via Skype, and telephone, rather than face to face contact.[50] But she also confirmed that those close to him “would still exist for him.”
[50] Transcript (17th November 2010) p.76.
Next, Ms L was asked about the impact on [X] of a change from his regular child care centre to one in Manila. Respectfully, her response to such questions struck me as both appropriate and realistic. I say this because, although it was put to her that such a change in child-care would be a “substantial change”, she said matter-of-factly that “… life tends to be like that.”[51] That said, she readily accepted that it was dangerous to generalise in terms of a child’s capacity to cope and or in relation to the vagaries and changes in life, particularly for young children.
[51] Ibid.
For my part, I see no difficulty in Ms L (a) relying upon what both parents told her about [X]’s capacity to cope with change (and I infer that this information was conveyed to Ms L separately by each parent, and not in any ‘joint meeting’ with her), and (b) her own observations of [X], taken of course in the light of her very significant experience as a family consultant.
She agreed with a question which was, respectfully, not completely accurate. It was put to her by the experienced Counsel for Mr McAuliffe that the loss of his child care centre “permanently” would be a “major change” for him.[52] The reality is that, as already noted on a number of occasions, the change is for a defined time; it is not a “permanent” change, as put to Ms L.[53]
[52] Transcript (17th November 2010) p.77.
[53] A “permanent” change to his child-care could also just as easily occur if he changed to a different facility in Canberra.
Ms L was then questioned about the idea, as well as the importance for [X]’s emotional and psychological development, for him to maintain and grow a bond with the non-resident parent. To this Ms L said that there were a number of ways for [X] to maintain a relationship with his Father, accepting that they were different from and not as ideal as regular personal contact. She agreed that ‘face to face’ contact was more beneficial than telephone contact. She agreed that there was no formal comparison between the two.[54]
[54] Such matters are, of course, relevant to the distinction to which Kay J referred in Godfrey v Sanders (noted earlier in these reasons) between a ‘meaningful relationship’ and an ‘optimal relationship.’
The next series of questions related to comments made in her Report about [X] gaining ‘from all the benefits of being immersed in a new culture for a defined period of time’ and (a) [X]’s ability to obtain those benefits given the secure environment in which he would be living, and (b) his general safety in Manila and other parts of the Philippines.
She confirmed that she assumed that Ms Davies would be guided by the Embassy advice in Manila as to the suitability and safety of venues and places to which she and [X] might contemplate travelling. It was also put to Ms L that [X]’s young age militated against his ability to experience and perceive the local environment and culture in Manila and, therefore, the alleged benefits of the [employment] for [X] should be questioned. In answer to such questions Ms L said “... I find it hard to accept that... [X] isn’t going to be exposed to... the culture to at least some degree to... sort of gain... a benefit from that, it is just – it’s a difficult proposition for me to accept.”
Earlier Ms L had observed: “I think a ... three and a half year old child actually picks up a lot of information from your environment, in fact, ... that is the age when ... brain capacity in fact is growing at probably the fastest pace in future development. So children at that age absorb an enormous amount of information.”[55]
[55] Transcript (17th November 2010) p.80. To state the obvious, within the first 6 months of the [employment], [X] will turn 4.
Ms L made, in my view, an important observation, namely that it seemed to have been assumed that change is a negative thing, whereas, she said, “... for children, often change ... is a very positive thing. ... change is positive for children providing that the parents are able to manage that change for the child. And providing that the child is a robust child and ... robust children, in fact, usually ... embrace change and cope with change very well.” Ms L confirmed that she had the impression that [X] is a very resilient child which, she said “indicates that he is also a very secure child.”[56]
[56] Transcript (17th November 2010) p.82.
In answer to a question as to whether or not [X]’s relationship with his Father would be likely to be jeopardised by the defined-period relocation, and in the light of the fact that it was not doubted that [X] and his Father have a strong relationship, Ms L said firmly that “it wouldn’t jeopardise the relationship.”
She acknowledged that it was a bit of a crucial time of the Father-son relationship, but that did not seem to alter her evidence in relation to the relationship being able to be sustained during the time of Ms Davies [employment in] Manila. She confirmed again that regular contact with his Father from Manila via Skype, as well as the proposed regular contact between [X] and his Father between now and the time of his Mother’s departure [in 2011], would further cement and secure their relationship.[57]
[57] In this regard, see the detailed discussion by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138, among other places at [384] and [562] in relation to the maintenance of a long-distance relationship with a child younger than [X] in the current proceedings, and where her Honour permitted a [permanent] relocation to the Republic of Ireland. Ryan J acknowledged the difficulties of doing so but still permitted the relocation, obviously in circumstances very different to those currently before the Court. Her Honour noted that there would be gaps in ‘contact’ with the child and ‘meaningful others’ of up to 12 months.
Ms L also commented that the fact that the relocation was for a defined period of time was a significant distinction to make compared to other relocation cases where the proposed move is intended to be permanent. She observed that because [X] understands the concept of time, or is beginning to do so, [X] knows that he will be reunited after a period of time and would continue to be reminded of that. Therefore, there would be no perception of loss in this case as between Father and son and their relationship.[58] In my view, this, too, is a significant consideration in relation to the ‘meaningful relationship’ referred to in the ‘primary considerations’ in s.60CC(2).
[58] Transcript (17th November 2010) pp.83-84.
Although addressed later in these reasons, it is sufficient to note that following an exchange between the parties’ Counsel in relation to what might be described as a Taylor v Barker issue,[59] Ms L was asked about the likely impact on the parenting relationship of the parties in the event that Ms Davies was not permitted to relocate.[60] She said that Ms Davies would certainly feel resentment as part of a normal reaction. She also opined that she had the impression that Ms Davies would overcome that resentment for [X]’s sake. Ms L confirmed that her strong impression of Ms Davies was that she was very positive about [X]’s relationship with his Father and that she would make sure that he continued to have a good and strong relationship with his Father.[61]
[59] See the Full Court discussion in Taylor & Barker (2008) 37 Fam LR 461 at pp.484-486 [108] – [111] in relation to the assessment in that case of the happiness and contentment of the Mother should she not be permitted to relocate. Again I stress that unlike Taylor v Barker, and almost invariably all other relocation cases, in this instance it is not a permanent relocation, but only for a defined time. In Taylor v Barker, at [109], their Honours stated: “Happiness is a state of mind to be inferred from evidence.” I come back to such “inferences” later in these reasons.
[60] See also par.14 of the Family Report, which records Ms Davies’ likely ‘deep disappoint’ if she was unable to take up the [position], and the likely negative impact on her career if she did not accept the current offer to go to the Philippines.
[61] Transcript (17th November 2010) pp.84-85.
Evidence of Mr T: Mr T [is employed in Manila]. He filed an affidavit on behalf of Ms Davies (filed in Court on 17th November 2010).[62] In the course of that affidavit, Mr T confirmed that Ms Davies had won selection for the overseas [position] from a field of 12 candidates, that selection for overseas [position] “is a highly competitive process”, and that overseas [positions] “are an important element of career development with [omitted] and provide a comprehensive development opportunity.” The Court and the Applicant Father were notified in writing that Ms Davies proposed to rely upon Mr T’s affidavit.
[62] Only in the course of the trial was it advised that Mr T would not be required for cross-examination. I do not note this critically. Without knowing definitely one way or the other, I had the impression that the experienced Counsel for Mr McAuliffe had only come in to the matter relatively recently, which may also account for changes in ‘orders sought’ late in the proceedings.
Mr T’s unchallenged evidence is relevant to the significance to Ms Davies of her ability to take [the overseas employment]. It is, in my view, complementary with the evidence given by Ms L as to the impact on Ms Davies should she not move for work purposes to the Philippines.
In Taylor v Barker, the unhappiness of the Mother in those proceedings was linked to her intention to marry. However, it is hopefully not overly trite to observe that a person’s happiness is not linked only to ‘matters of the heart.’ It could, and in all likelihood would, be linked to other areas, such as a significant work or work-related opportunity. This is clearly the case here. Thus, to use the words of the distinguished majority judges of the Full Court in Taylor v Barker, at [109]: “Happiness is a state of mind to be inferred from evidence.”
Here, the evidence is clear from Ms L, and may readily be inferred from the evidence of Mr T, that Ms Davies would very likely suffer significant unhappiness and discontent if she was unable to take up this important opportunity for a short-term [position in] Manila. Such a view, as I have said, is open to the Court on the evidence of Ms L and Mr T. It is supported by legal principle enunciated by the Full Court in Taylor v Barker, and by Kirby J in the High Court in AMS v AIF (noted below), and the consequent risk of its negative impact on Ms Davies’ parenting of [X] should she be denied this opportunity.
Outline of Legal Principle
In this section of these reasons I propose to do two things. First, to consider the prescribed ‘legislative pathway’; secondly, to outline some general principles that might be said to be derived from that sub-species known as ‘relocation cases.’
It is as well to set out the jurisprudential framework as follows. In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[63]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[63] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[64]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[64] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Having regard to this jurisprudential framework, I note the following for the purposes of the Court seeking to establish what orders are in [X]’s best interests.[65]
[65] Cf. s.60CA.
Given [X]’s age, there are no views to be considered.[66]
[66] See Goode v Goode (2007) 36 Fam LR 422 at p.445 [81] – [82]; Keach & Keach (2007) FLC ¶93-353. Unless otherwise noted, I may be taken to deal sequentially with each of the considerations set out in s.60CC(3).
There is no question that [X] has a good, close and secure relationship with his Mother, who has always been his primary carer. There was also no dispute that [X] has a secure relationship with his Father, and likewise, in particular, with the members of Ms Davies’ household, such as his maternal Grandparents, and his Aunt.
Notwithstanding attempts to suggest otherwise, I have no difficulty in finding that Ms Davies has a clear and strong capacity to facilitate and encourage [X]’s relationship with his Father. It was not suggested that Mr McAuliffe has ever tried to undermine or otherwise challenge [X]’s relationship with his Mother.
As to the likely effect on [X] of the proposed change in circumstance of living in Manila with his Mother, a number of matters may be noted. First, in the light of Dessau J’s comments in M v S, and Kay J’s comments in Godfrey & Sanders (accepted and applied by Young J in Davis v Davis) in relation to ‘meaningful’ compared to ‘optimal’ relationship, there is no doubt that there will be a change in the nature and duration of the time that [X] spends with his Father. The face-to-face time will be limited but likely intense for other periods of time, which will be punctuated by times of various electronic means of communication.
Secondly, in the absence of direct or more detailed evidence from Mr McAuliffe, the Court cannot make any formal finding about the likelihood or frequency of visits to Manila that [X] may actually make. Among other things, Mr McAuliffe’s lack of inquiry of his employer makes such consideration all the more problematic.
Thirdly, there is the clear evidence of Ms L, whose evidence I accept, that [X] has a secure relationship with both parents. Part of that evidence is the important consideration that there will not be (and I infer, should not be) a sense of loss, or certainly not a permanent sense of loss. [X], and all those near and dear to him, know, and should regularly confirm (and affirm), that the time away from Canberra will be limited and that [X] and his Mother are returning to Canberra (a) regularly during [employment], and (b) at the conclusion of it. During the entirety of [employment], [X] will be in regular touch with his Father by a variety of means.
In the light of the evidence, in my view, the impact of the [employment] on [X], in terms of the relationship with his Father, will be modest. Indeed, as Ms L stated, given the security of the relationship between them, she stated firmly that “it wouldn’t jeopardise the relationship.”
For the most part, to the degree that there will be cost involved, on Ms Davies’ evidence, it will essentially all fall to her. By this I understand that she (or her employer) will be responsible for the travel between Canberra and Manila; and she will be responsible for any and all forms of electronic communication. All other costs (e.g. travel by Mr McAuliffe, or additional telephone/Skype calls) will be discretionary.
There has been no question of Ms Davies’ past, present or future capacity to provide for [X]’s needs. There are a number of question-marks over Mr McAuliffe ’s capacity and ability to do so, to which I have referred, not least being (a) his availability for [X] given his demanding work commitments, and (b) that he has made no inquiry from his employer regarding leave and or more flexible work hours.[67]
[67] The matters already covered in the evidence, and in the discussion thus far, in my view, deal with the matters addressed by s.60CC(3)(g). Section 60CC(3)(h), (j), and (k) have no application to the current proceedings.
In my view, the matters already canvassed in the course of the evidence, and briefly in relation to the ‘willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and the other parent’, are also directly relevant to s.60CC(3)(i). In short, I have no doubts about Ms Davies in this regard, whereas I have a number of doubts about Mr McAuliffe’s readiness and preparedness, at this time and into the immediate future, to provide for greater care and involvement in [X]’s life. Such doubts reflect my previously expressed concerns about his responsibilities of parenthood. I have no doubt about his good intentions. But as I have said, the evidence confirms that his involvement in and capacity to provide adequate care for [X] has yet to be established.
In my view, given the unusual circumstances of this case, and in particular the limited duration of her [employment], the orders proposed by Ms Davies are the least likely to lead to further proceedings in relation to [X].
Turning then to the presumption in s.61DA in relation to equal shared parental responsibility, both parties seek such an order. I confess that, because of the unusual circumstances of the case and the necessary limitations of time and distance, I have some reservation about making such an order, at least for the duration of [her employment]. However, because of my confidence in Ms Davies’ capacity (a) to promote [X]’s relationship with his Father, (b) her regular return trips to Australia, and (c) the evidence of both parties that supports a finding that they have good communication, such an order will be made.
Such an order requires the Court to then consider the applicability, or otherwise, of s.65DAA in relation to either equal time, or substantial and significant time.
It is well known that the High Court considered the terms and application of this section in MRR v GR.[68]
[68] (2010) 240 CLR 461.
At [13], the High Court said (internal citations omitted):
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The Court further observed (if not declared), at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
In the light of these direct comments by the High Court, and therefore having regard to what is in [X]’s best interests, and the “reality of the situation of the parents and the child”, on the basis of logistics (or “practical assessment”) occasioned by the geographical locations of the parties, the ‘reasonable practicability’ requirement prevents any prospect of either equal time, or “substantial and significant time”, orders being made here. Accordingly, the orders as sought by Ms Davies in relation to [X] spending time with his Father should and will be made. In my view, in the circumstances of the case, they are in [X]’s best interests.
In making such orders, I hasten to note that, in my view, upon her return to Australia from her [employment], Ms Davies and Mr McAuliffe should engage in mediation with a view to working out appropriate parenting orders having regard to what is in [X]’s best interests, and the various commitments of his parents. Such a course is, in fact, part of the orders as sought by Ms Davies. She proposes that this mediation occur within six weeks of her (and [X]’s) return to Canberra at the conclusion of her [employment]. I agree.
Finally, I turn to consider – briefly - such matters not otherwise addressed in these reasons that might be said to arise out of ‘relocation cases.’
In F v F, I set out a summary of relevant principles drawn from High Court and Full Court authorities in relation to relocation.[69] That summary is set out below, but with an edited selection of internal citations quoted; thus:[70]
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. Powell v Ptolemy, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[71] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[72] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests.
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation”[93]).
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
[69] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) at [244] & [245].
[70] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-348 at [100], and Cales & Cales [2010] FamCAFC 237 at [139].
[71] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[72] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].
This summary of principle must, of course, be seen and understood in the light and context of the ‘prescribed legislative pathway’ in Part VII of the Act. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations referring to U v U and Bolitho & Cohen omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours’ said, at [60]:[73]
[73] See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
Conclusion
In the light of the consideration of (a) the evidence, (b) the legislative pathway, and (c) the jurisprudential principles enunciated particularly by the majority judgment in Taylor v Barker, and the Full Court in McCall v Clark (and, respectfully, giving due attention to the recent, extended discussion by Ryan J in Sheldon & Weir (No.3) where her Honour permitted a [permanent or ‘traditional’] relocation to Ireland of a child younger than the child the subject of the proceedings before me), the orders sought by the Respondent Mother are, in my view, in [X]’s best interests – and conversely, the orders sought by his Father are not. The orders sought by Ms Davies should be made. It is so ordered.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 4 February 2011
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