Michaelson and Gainer - [2020] FamCA 284

FAMILY COURT OF AUSTRALIA

MICHAELSON & GAINER

[2020] FamCA 284

FAMILY LAW – CHILD RELATED PROCEEDINGS – UNDEFENDED – Where the mother seeks orders be made for sole parental responsibility and for the child to live with her – Where the father has notified the Court that he will not be participating in the proceedings – Where leave is granted for the matter to proceed on an undefended basis – Where the father has not spent time with the child since January 2018 – Where the mother relocated to Australia with the child with consent of the father in 2014 – Where the mother relocated to Asia with the child following orders being made in this Court in 2016 – Where the father currently resides in Country B. – Where the evidence of the mother is unchallenged – Orders made in accordance with the orders sought by the mother.

Family Law Act 1975 (Cth) s 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAC(2) 65DAC(3), 65DAA

Cotton & Cotton (1983) FLC 91-330
Dundas & Blake (2013) FLC 93-552
Finton & Kimble [2017] FCWA 106
Jurchenko & Foster (2014) FLC 93-598
Marvel v Marvel (2010) 43 Fam LR 348
McCall & Clark (2009) FLC 93-405
Sigley v Evor (2011) 44 Fam LR 439
VR & RR (2002) FLC 93-099

APPLICANT:

Ms Michaelson

RESPONDENT:

Mr Gainer

FILE NUMBER:

SYC

1432

2016

DATE DELIVERED:

29 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

7 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Ben O'Sullivan of O’Sullivan Legal

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT

Orders

THE COURT ORDERS THAT:

Leave is granted for the matter to proceed on an undefended basis.

ON AN UNDEFENDED BASIS, THE COURT ORDERS THAT:

All previous parenting Orders be discharged.
Ms Michaelson (“the mother”) have sole parental responsibility for X born … 2007 (“the child”).
The child live with the mother.

THE COURT NOTES THAT:

A.The mother undertakes, subject to the wishes of the child, to facilitate the child spending reasonable time with Mr Gainer (“the father”), with such time to be spent in the country in which the mother resides in the event that contact is reasonably requested by the father.
B.The mother further undertakes, subject to the wishes of the child, to facilitate the child having reasonable contact with the father by electronic means in the event that contact is reasonably requested by the father.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1432 of 2016

Ms Michaelson

Applicant

And

Mr Gainer

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an Application for parenting orders by Ms Michaelson (“the mother”), in respect of the child, X born in 2007 (“the child”). X is the child of the mother and the Respondent, Mr Gainer (“the father”).
The mother and the child currently reside in Asia with the mother’s current partner and their two (2) children. The father currently resides in Country B. with his current partner and their two (2) children. Following Orders being made permitting the mother and child to relocate to Australia in 2013, proceedings were initiated in this Court. The father has had irregular contact with the child since that time and last spent time with the child in Asia in January 2018.

Proceeding on an undefended basis

For the following reasons, I am satisfied that the matter is to proceed on an undefended basis. The father has not appeared before the Court since 2016, and has indicated, as set out in a letter filed as written submissions on 2 April 2020, that he will not engage in these proceedings.
The case outline document filed by the mother on 2 April 2020 sets out the Minute of Orders the mother is seeking in these proceedings. Accordingly, I am satisfied that the father has had appropriate notice of the final parenting orders as sought by the mother.
On 13 December 2019, the matter came before me in a callover list, whereby I made Orders setting the matter down for final hearing on 7 April 2020 and made directions for each party to file and serve a trial Affidavit and any Affidavits of witnesses that they intend to rely upon. The father has failed to comply with the Court Orders requiring him to file Affidavit material.
As further detailed below, I am satisfied that the solicitor for the mother has corresponded with the father to advise him that, if he failed to appear in the proceedings on 7 April 2020 or failed to file any material, the mother would seek leave to proceed on an undefended basis.
Having regard to all of the above matters, I am satisfied that the father has been given appropriate notice of the hearing and orders sought by the mother and has been put on notice that the matter may proceed undefended if he did not appear or file any material.

Background

The chronology set out by the mother in ‘Annexure B’ to her case outline was not challenged. Accordingly, I will now set out the relevant facts and procedural history of the matter in accordance with the mother’s chronology.
In 1964, the father was born. He is currently aged 55 years.
In 1971, Mr Michaelson, the mother’s current partner, was born. He is currently aged 48 years.
In 1976, the mother was born. She is currently aged 44 years.
In 2000, the parties met. At this time, the mother also met Ms W, the father’s daughter to a previous relationship.
In 2003, the parties married in London.
In 2007, the parties’ child was born in the United Kingdom. He is currently aged 12 years.
In March 2009, the parties separated on a final basis and, in 2012, the parties divorced.
In 2013, the mother married Mr Michaelson.
On … 2013, the High Court of Justice Family Division in the United Kingdom made Orders by consent permitting the child to relocate with the mother to Australia and travel to London to spend time with his father twice per year and for the father to travel to Australia to spend time with the child.
In 2013, the mother and Mr Michaelson’s child, Y, was born. He is currently aged 6 years.
In May 2014, the mother and the child relocated to Sydney, Australia, with her current husband, Mr Michaelson, and the child’s brother, Y.
In July 2014, the mother and the child’s brother, Y, accompanied the child to England to facilitate the child spending time with the father.
In April 2015, the child travelled to England unaccompanied to spend time with the father pursuant to the Orders made on … 2013.
On 8 August 2014, the father sent an email to the mother contending that the mother has made poor diet choices for the child and has caused the child to be overweight.
In 2015, the mother and Mr Michaelson’s child, Z, was born. He is currently aged 4 years.
In September 2015, the child travelled unaccompanied to England to spend time with the father pursuant to the Orders made on … 2013.
The mother contends that the father has not travelled to Australia to spend time with the child, in accordance with the Orders of … 2013, as the father could not financially afford to do so.
On 11 March 2016, the mother initiated proceedings in the Family Court of Australia seeking final parenting orders.
On 13 September 2016, the mother informed the father by email that she and the child are relocating to Asia with Mr Michaelson and their two (2) children.
On 15 September 2016, the father, by email, expressed support for the relocation, as set out below:
…hope you all will have a great time there. It indeed sounds exciting.
There are some changes on my side too. I have made a decision not to continue with the court matter regarding X. I think enough is enough and we should try to resolve the issue of my contact with X using common sense, decency and his wishes and ignoring our personal likes and dislikes of each other. I do not want to drag my son into the proceedings, where he will have to choose sides. It is my strong belief this not only not in his interests but will be to his detriment. I am anxious that this will affect him for many years to come. I am not prepared to take the responsibility for this and will leave it to you.
You mentioned that life in Asia will enrich X's experience, he will study F Language and observe different culture. I absolutely accept that and it is really great.
On 12 December 2016, Orders were made by consent in this Court discharging the Orders made on … 2013 in the High Court of Justice. The consent Orders also provided for the child to live with the mother and spend time with the father as agreed between the parties and in default of agreement as ordered by the Court. Orders were also made injuncting each party from changing the child’s surname from “Gainer” and permitting the child to travel with the mother.
In January 2017, the mother, the child, Mr Michaelson and the child’s brothers, Y and Z, relocated to Asia.
In February 2017, the mother contends that the father indicated he would visit the child in Asia and, however, that the father did not travel to Asia on that occasion.
On 10 August 2017, a Child Responsive Program Memorandum (“2017 CRP memorandum”) of the Family Consultant, Ms C, was released. Both parties and the child were interviewed by Ms C for the purpose of producing the memorandum.
In January 2018, the father and the child spent time together in Asia. This was the last time the child and the father spent time in person together. The parties discussed the father and the child having more regular communication by telephone.
On 12 February 2018, the father indicated, by email to the mother, that he will not seek any further contact with the child.
In February 2019, the child visited his maternal grandparents in Country D for his maternal grandfather’s birthday.
On 15 November 2019, the father filed a parenting questionnaire. The father indicated that he now lives in City E, Country B, with his current partner, Ms Gainer and their two (2) children, U and V.
On 28 November 2019, the mother filed a parenting questionnaire.
On 13 December 2019, the matter came before me and there was no appearance by or on behalf of the father. I set the matter down for final hearing and made directions for the parties to file and serve a consolidated trial Affidavit and any third party witness Affidavits they intend to rely upon.
On 27 February 2020, the mother’s solicitors sent a letter to the father to put him on notice that, if no trial material was filed or if the father did not appear at the final hearing, the mother would seek to proceed on an undefended basis.
On 3 March 2020, the mother’s solicitors followed up with the father regarding the letter sent on 27 February 2020.
On 17 March 2020, the mother’s solicitors sent a further letter to the father putting him on notice that if no trial material was filed or served the mother would seek to proceed on an undefended basis.
On 27 March 2020, the mother’s solicitors served a draft chronology on the father and reiterated the notice in the letters sent on 27 February 2020 and 17 March 2020.
On 3 April 2020, the matter came before me for further directions. Noting that there was no appearance by the father, I made Orders confirming that the final hearing would commence on 7 April 2020 by video conference.

Applications

The mother seeks that orders be made in accordance with the Minute of Order set out in ‘Annexure A’ to her case outline document. Inter alia, she seeks orders for sole parental responsibility for the child and for the child to live with the mother.
During the course of the hearing, the mother also offered to provide an undertaking, as set out in an email to the Court dated 7 April 2020, in the following terms:
I, Ms Michaelson, born in 1976, hereby undertake to the family Court of Australia, that in the event the father makes a request to spend time or communicate with X (born in 2007), and subject to X’s wishes, I will do all acts and things as is required to accommodate a reasonable request from the father to spend such time and communicate with X in any country in which I am residing.
The father seeks, as outlined in his parenting questionnaire filed 15 November 2019, that, pursuant to the contact Orders made on … 2013 by the High Court of Justice Family Division, the child spend time with the father during school holidays twice a year with the mother to facilitate this contact by causing the child to travel to London or City E and that regular video contact between the father and the child is restored.

Evidence

The mother relied upon the following documents:
a)Affidavit of the mother filed 6 March 2020;
b)Affidavit of Mr Michaelson filed 6 March 2020;
c)Parenting Questionnaire filed 28 November 2019;
d)Child Responsive Program Memorandum dated 21 July 2017; and
e)Tender bundle of letters from the solicitor for the mother to the father.
The father, who did not appear in these proceedings, filed a parenting questionnaire dated 15 November 2019 and written submissions dated 2 April 2020. With no objection by the solicitor for the mother, I propose to have regard to the written submissions filed by the father and parenting questionnaire throughout my reasons for judgment.

The law - concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objectives of Part VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”, and to protect them from family violence: s 43(1)(c), (ca) of the Act.

The presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
…
(4) The presumption may be 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.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
…[I]n our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
Those authorities must, however, be read in the context of s 65DAC(2) and (3) of the Act, which provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
As referred to by the solicitor for the mother, the Full Court, in Marvel v Marvel (2010) 43 Fam LR 348 at [103], acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility, stating that:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
If an order for equal shared parental responsibility is made, the pathway set out in s 65DAA of the Act applies to the task before the Court in respect to making parenting orders that it considers to be in the best interests of the child. That is, the Court is required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties.
For the reasons set out below, I am satisfied that it is not in the child’s best interests for the father and the mother to have equal shared parental responsibility. In the circumstances of this case, parental responsibility should lay with the mother who is the parent with whom the child lives. As a result of that finding, the Court is not required to consider whether the children spending equal time or substantial and significant time with each parent would be in their best interests and whether it is reasonably practicable to do so: s 65DAA of the Act.

Best interests of the child

Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.

Meaningful relationship

Section 60CC(2)(a) requires me to consider the importance of the child having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 (“Sigley v Evor”) at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”
In McCall & Clark (2009) FLC 93-405 at 83,476, the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Finton & Kimble [2017] FCWA 106 at [37], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.

Additional considerations

Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. I will set out each additional consideration below.

Considerations

Parental Responsibility

Relevantly, in this matter, I am required, firstly, to determine whether there are circumstances which justify a departure from the presumption of shared parental responsibility as provided in s 61DA of the Act.
At paragraphs 24 to 26 of the 2017 CRP memorandum, the Family Consultant, Ms C, expressed the following opinion:
24. The parents appeared to have little respect for, or trust in, each other. It is positive to note, however, that neither parent was overly critical of the other, and both appear to have the capacity to communicate respectfully with each other. Both parents said that they communicate by email. The parents seemed not to have a strong sense of each other as individuals, however, this would be expected given that they have rarely seen each other in recent years and have not lived on the same continent for almost four years. The parents agreed that X could meet up with [the father] in Country D, and neither foresee any problems with this arrangement.
25. [The mother] expressed disappointment that [the father] has not made more effort to spend time with X, and said that she believes [the father] “does not want X”. She appeared to consider that [the father] now has only a legal connection to X.
26. [The father] said that [the mother] is to blame for the fact that he has not seen X for two years. He said that he is not willing to give up parental responsibility for X, and that he wants a Court order about this. He said he does not trust [the mother’s] promises regarding X and does not want her to be able to “dictate conditions” regarding his parental rights.
Given that the child has been living with the mother in a separate country to the father since 2014, as opined by Ms C at paragraph 32 of the 2017 CRP memorandum:
[The mother] has made all parenting decisions for many years, and that [the father] did not opposed [sic] X re-locating, either from London to Sydney, or Sydney to Asia, it is understandable that [the mother] would seek to simplify visa applications for X.
The mother contends that she does not currently communicate with the father and that communications in the past have been sporadic and not cooperative.
On the basis of the unchallenged evidence of the mother and the observations of the Family Consultant, Ms C, I am satisfied that the nature of the communication between the parties has been strained and is less than efficacious. I am further satisfied that making an order that the mother have sole parental responsibility would maintain the status quo for the child.
In the context of the child living in a separate country with the mother, I therefore find that it is appropriate that the mother have sole parental responsibility.

Primary Considerations

The mother acknowledges that it is appropriate for the child to have a meaningful relationship with both of his parents. In that respect, the mother has provided an undertaking to the Court to use her best endeavours to facilitate the child spending time with and communicating with the father, in the event that the time is reasonably requested by the father and subject to the child’s wishes. For reasons which I have set out below, I am satisfied that the child is of an age at which his wishes should be given weight.
In terms of risk, the mother does not allege that the child is exposed to the risk of violence or abuse in the father’s care. However, the mother does contend that the child travelling to Country B. to spend time with the father poses a risk to the child.
The child has not spent time with the father since 2018, when he was aged 10 years. The father has not engaged with the child in any meaningful way since that time.
The solicitor for the mother made the following submissions in respect to the child spending meaningful time with the father:
…it is the mother’s case that the Court can find that X and the Father do not have a meaningful relationship following the Father taking few steps to spend time or communicate with X. During the parties’ separation and consequent divorce in 2012, the Father obtained a Court Order regarding time with X, however this was not adhered to. The Mother indicates that whilst they were living in the same city, London, at the time of separation, the Father did not attempt to build a meaningful relationship with X or contact him regularly.
When the mother relocated with X to Sydney after remarrying, pursuant to UK Orders, arrangements were put into place for X to spend time with his Father in England and for the Father to travel to Australia during the Christmas period. X travelled to England on three separate occasions.
…
When the mother relocated with X to Asia, she provided the Father with X’s mobile number as well as her and [Mr Michaelson’s] mobile number in order to encourage communication between X and his Father. The Father called at last [sic] once every two to three months, and this eventually became 1 to 2 times per year.
[Citations omitted]
In circumstances where the father has elected to disengage from these proceedings and has filed no documents in support of any application, there would appear to be little utility in the Court attempting to frame orders for him to spend time and communicate with the child. I am, however, satisfied that, in accordance with the undertaking given to the Court, the mother would use her best endeavours to facilitate the father re-establishing a relationship with the child in person or by electronic means if reasonably requested by the father.

Additional considerations

Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

In respect to the child’s views, at paragraphs 12 and 13 of her 2017 CRP memorandum, Ms C made the following observations:
At the time of the Meeting Child and Family interviews, X had been living in Asia for almost six months. He said that he “loves” living in Asia, and has settled into school there and made new friends.
…
X said that he has a happy home and that his family live “a very full life”…
At paragraphs 17 and 27 of her 2017 CRP memorandum, Ms C made the following further observations:
X expressed some contradictory views about his father. At times he spoke of his love for his father, but also expressed deep resentment. He said “I want Dad to know that although I go against him at times, I do have a soft side for him and I will always support him in everything he does”. He said “I miss him just as much as he misses me”. X said that he often tries to phone his father, but that [the father] never answers.
…
X is clearly an intelligent and insightful child with great capacity for empathy, and who views himself within a global context. Despite not spending time with his father for two years, X appears to have retained a strong sense and memory of [the father], and it was clear that he (X) has spent considerable time thinking about possible ways to see his father.
Ms C, at paragraph 14 of her 2017 CRP memorandum, reports that “X said that he would enjoy visiting Country B. to spend time with his father and to learn about his Country B culture…”
The mother contends that communication between the father and the child has been strained and that the child has become upset or distressed following recent telephone conversations with the father.
At paragraph 65 of her Affidavit, the mother deposed that, following a conversation with the father in February 2018, the child said words to the effect that he does not “believe [the father] anymore” and that the father “is not the father [the child] needed [him] to be”.
The mother has deposed to various accounts of the child expressing the view that he did not want to continue to travel overseas to spend time with his father.
I respectfully agree with the submission of the solicitor for the mother that the child’s views of traveling to spend time with the father were expressed to the Family Consultant in 2017, prior to the father traveling to spend time with the child in Asia in January 2018. I accept that there is a possibility that the child has expressed an alternative view to the mother that he no longer would like to travel to spend time with the father.
Ms C observed the child to be “very mature, intelligent and [an] articulate child”. The mother, similarly, attests to the child being “very intelligent and emotionally mature”. I accept that the child is now of an age when his views should be given some weight and, in that respect, I note the mother’s undertaking to the Court that she will facilitate the child spending time and communicating with the father subject to the father reasonably requesting that time and that time being subject to the child’s wishes.

Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).

The mother contends that she has always been the child’s primary carer throughout the parties’ relationship and has been the child’s primary carer since the parties’ separation in 2009.
It is undisputed that the child enjoys a close and loving relationship with Mr Michaelson, the mother’s current partner. As reported by Ms C in her 2017 CRP memorandum, the child “has a very positive relationship with Mr Michaelson”.
The mother has supported and nurtured the child’s relationship with her extended family. In that respect, in paragraph 71 of her Affidavit, the mother sets out the following:
We receive regular visits from X's maternal grandparents and [Mr Michaelson's] brother, sister-in-law and the children's cousins. [The child] also communicates regularly with his [maternal] grandparents via WhatsApp and have visited them in Country D in February 2019, for [the mother’s] father's 70th. Due to [Mr Michaelson's] work commitments, I had to fly in only with X who wrote an amazing speech, read it very confidently in front of about 100 guests. While in Country D, X was driven to important building sites his granddad is leading. X was not afraid to look into blueprints and use the shovel with ground workers, coming back home after long day, dirty, exhausted but very happy. This year, because of X's school commitments, his grandmother postponing her 70^th birthday celebrations till September 2020 so we are in Country D all together.
As set out in her parenting questionnaire, the mother contends that she has facilitated the child spending time with the father’s extended family, including the child’s aunt and paternal grandmother in Australia.
On the basis of the unchallenged evidence of the mother and Mr Michaelson , I am satisfied the child has a close and loving relationship with the mother, Mr Michaelson and members of the child’s extended family.
At paragraph 12 of her 2017 CRP memorandum, Ms C reported that:
X identified that his family is very important to him, and spoke at length about his family connections and about his extensive social networks in different parts of the world. X expressed disappointment that he has not seen his older sister, “Ms W”, who is [the father’s] daughter from a previous relationship, for about four years.
It is unfortunate that, after the parties separated, communication between the child and Ms W was severed. The mother contends that Ms W is very important to the child and she has not been able to facilitate contact with Ms W since 2009.
As previously noted, the child has spent no time with the father since January 2018. The relationship between the father and the child has been strained by the irregular contact the child has had with the father. I accept the mother’s unchallenged evidence that, as a result of this, the child does not have contact with the father’s current partner and two (2) children.

Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.

The father has not spent time with the child since January 2018 when he visited Asia and has not participated in these proceedings. Since January 2018, the father has had irregular telephone communication with the child.
As noted above, I accept that the mother has, since separation, been solely responsible for making any decisions in respect to the child’s day-to-day and long-term care, welfare and development.
The mother has been primarily responsible for the financial support of the child since relocating to Australia with the child.

Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

I accept the submissions of the solicitor for the mother, in respect to this consideration, which are as follows:
When the parties separated, the Father was not present in the care of X either emotionally or financially. The Father maintained that he did not have any means to support X. Based on tax records, the child support agency granted £30pcm for X’s care. The mother invested private training for swimming lessons for X. She further took him to watch events such as Queen Elizabeth II Jubilee boat parade, going to a nearby park, feeding birds and going to museums and zoos. The Mother also took X to Paris Disney Land to spend Christmas in 2012.
The Mother has done all things to ensure X’s wellbeing.
(Citations omitted)

Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.

I agree with the submissions of the solicitor for the mother that the orders sought by the mother represent a continuation of the current arrangements and essentially maintain a status quo whereby the child remains living with the mother and she continues to make all decisions in respect to the child’s day-to-day and long-term care, and the father spend time with the child as requested.

Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

The mother states that the father has previously not been able to travel to Australia or Asia to spend time with the child as he contends that the expense of the travel is precluding him from doing so. Although I accept that travelling overseas is an expensive endeavour, in the absence of any evidence provided by the father, I am unable to determine the practical difficulty and expense of the father spending time with the child.

Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

I accept the mother’s unchallenged evidence that she provides a “stable, loving and supportive environment for [the child]” including by providing the child with “his own bedroom and en-suite, a double bed, [and] plenty of technology to assist with his schooling and fulfilling social life”.
I further accept the mother’s evidence that she has arranged private tutors for the child to help with his schooling and has organised the child to engage in extra-curricular activities and hobbies.
The mother attests to working full-time, however, she works from home and is able to tend to the child and his activities. The mother also receives “assistance from a live-in helper who assists in the family and household”.
Having regard to the evidence before the Court, I am satisfied that the mother has and will continue to provide for the needs of the child.

Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks relevant.

At paragraph 14 of her 2017 CRP memorandum, Ms C observed that:
X spoke proudly of his cultural identity, and said that his maternal family originated in Country D, where he said he and his family visit frequently in order to see his maternal grandparents. X spoke of Country D as being a “really cool small village with dirt roads”. He said that he has a friend, “Q” in Country D. X said that he currently speaks only English and Country B, but that he is learning to speak D Language and also F Language now that he lives in Asia.
As set out above in these reasons, the mother has facilitated the child spending time with her family in Country D. I am satisfied that the child has been and will continue to be provided with an opportunity to learn more of the culture and traditions of his Country D heritage.
The mother has further deposed that she has enrolled the child in Country B language classes to ensure that he maintains his proficiency of the Country B language.

I further accept the mother’s evidence that the child has settled into Asia and is doing well in his schooling and is involved in a number of extra-curricular activities. The evidence satisfies me that the child is well-motivated and that the mother is supportive of his future aspirations to study aeronautical engineering.

Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.

This consideration is not relevant in these proceedings.

Sub-section (3)(i) – the attitude to the child and parental responsibilities by each of the child’s parents.

I have addressed this consideration earlier in these reasons.

Sub-section (3)(j) – any family violence involving a child or a member of the child’s family.

No issues of family violence involving the child or member of the child’s family have been agitated in these proceedings.

Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters:

This consideration is not relevant in these proceedings.

Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

Having regard to the history of the proceedings and in circumstances where the father has not participated in the proceedings before the Court, I am satisfied that the child’s best interests will be served by final orders being made in accordance with the mother’s proposal and that, by doing so, the child and the mother will be provided with certainty and stability as to future parenting arrangements.

Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.

There are no other relevant facts or circumstances.

Conclusion

For the reasons provided in the body of this decision, having regard to those submissions of the solicitor for the mother and the mother’s unchallenged evidence supporting those submissions, I am satisfied that it is in the best interests of the child to make the orders as sought by the mother, noting the undertaking that she has freely provided in respect to the child spending time with the father. Accordingly, I make the orders set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 29 April 2020.

Associate:

Date: 29 April 2020