Milford and Mansell
[2014] FamCA 1252
•13 June 2014
FAMILY COURT OF AUSTRALIA
| MILFORD & MANSELL | [2014] FamCA 1252 |
| FAMILY LAW – CHILDREN – Parenting orders – Best Interests – International relocation – Where the mother is from the UK and has lived in Australia for the past six years – Where the father has lived between Australia and New Zealand for the past seven years – Where the parents are dual citizens of Australia and the UK – Where the parties met in the UK – Where mother seeks to return to the UK and relocate the child – Where the father opposed relocation of the child and sought orders that the child live with the mother in Australia and spend time with the father – Where the child is 26 months old – Where the ICL supports the relocation of the child’s residence to the UK – Where the mother is suffering depression and anxiety – Where the single expert opined that if the mother was unable to relocate to the UK and remained living in Australia her mental state would remain compromised and this would negatively impact the child – Where the father accepts child’s best interests are met by living principally with the mother – Where it is considered the best interests of child are met by allowing relocation. |
| Family Law Act 1975 (Cth) – Part VII – s 60B, s 60CA, s 60CC, s 61B, s 61C, s 61DA, s 65AA, s 65DAA |
| Cowley v Mendoza 43 Fam LR 436 Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Ms Milford |
| RESPONDENT: | Mr Mansell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | SYC | 3889 | of | 2013 |
| DATE DELIVERED: | 13 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 26, 27, 28 & 29 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maurice |
| SOLICITOR FOR THE APPLICANT: | John de Mestre & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Johnston |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
The following parenting orders are made in relation to the child S MILFORD MANSELL born on … 2012 (“the child”).
All previous parenting orders are discharged.
Parental responsibility
Pursuant to s 61C of the Family Law Act1975 (Cth), each of the child's parents has parental responsibility for her.
Prior to implementing any decision in relation to the child's primary or secondary schooling, the mother shall:
a)contact the father;
b)ascertain his views in relation to the decision, and
c) give his views proper consideration.
Live with
The child shall live with her mother.
The mother be permitted to relocate the child’s place of residence to London in the United Kingdom (“UK”) forthwith.
Time with
The child shall spend time with her father as follows:
Until the mother and the child relocate to the UK:
a)Each Monday and Thursday (or such other days as may be agreed between the parents) between 3.00 pm and 6.00 pm, with the father to collect the child from C Daycare and return the child to the mother's home; and
b)Each Saturday between 8.30 am and 6.00 pm, with the father to collect the child from, and return her to, the mother's home.
After the mother and the child relocate to the UK and in the event that the father does not reside in the UK:
c)Until the child attains the age of 3 years, for periods of not less than 14 days, and not more than 21 days, to be implemented as follows, unless otherwise agreed:
i) Day 1: between 8.30 am and 12 midday;
ii) Day 2: between 8.30 am and 2.00 pm;
iii) Day 3: between 8.30 am and 4.00 pm;
iv)Thereafter, on each day between 8.30 am and 6.00 pm, save that the child shall remain in her mother's care on one day in every 7; and failing agreement that shall be the 7th, 14th and 21st days of the "time with" regime specified in this order; and
v)In the event that the father is available to spend time with the child beyond the above 21 day period, each Monday, Wednesday and Friday between 8.30 am and 6.00 pm.
d)Thereafter, until the child attains the age of 4 years, for periods of not less than 14 days and not more than 21 days, to be implemented as follows, unless otherwise agreed:
i) Day 1: between 8.30 am and 12 midday;
ii) Day 2: between 8.30 am and 2.00 pm;
iii) Day 3: between 8.30 am and 4.00 pm;
iv)Days 4, 5, and 6: on each day between 8.30 am and 6.00 pm;
v) Day 7: no "time with" period;
vi)Days 8 to 9: from 8.30 am on day 8, overnight until 9.00 am on day 9;
vii)Days 10 to 11: from 8.30 am on day 10, overnight until 9.00 am on day 11;
viii)Days 12 to 13: from 8.30 am on day 12, overnight until 12 midday on day 13;
ix) Day 14: no "time with" period;
x)Days 15 to 16: from 8.30 am on day 15, overnight until 12 midday on day 16;
xi)Days 17 to 18: from 8.30 am on day 17, overnight until 4.00 pm on day 18; and
xii)Days 19 to 20: from 8.30 am on day 19, overnight until 4.00 pm on day 20.
e)Thereafter, until the child commences school in September 2017, for periods of not less than 14 days and not more than 21 days, to be implemented as follows, unless otherwise agreed:
i) Day 1: between 8.30 am and 2.00 pm;
ii) Day 2: between 8.30 am and 4.00 pm;
iii)Days 3, 4, and 5: on each day between 8.30 am and 6.00 pm;
iv)Days 6 to 7: from 8.30 am on day 6 until 12 midday on day 7;
v) Day 8: no "time with" period;
vi)Days 9 to 10: from 8.30 am on day 9 until 4.00 pm on day 10;
vii)Days 11 to 12: from 8.30 am on day 11 until 4.00 pm on day 12;
viii)Days 13 to 15: from 8.30 am on day 13 until 4.00 pm on day 15;
ix) Day 16: no "time with" period; and
x)Days 17 to 20: from 8.30 am on day 17 until 4.00 pm on day 20.
f) Such periods of time shall occur:
i) In Sydney, Australia, on one occasion each year; and
ii) Otherwise, in London, in the United Kingdom.
g) After the child has commenced school in September 2017:
i)For a period of not less than 10 days in the child's Easter and Christmas school holiday periods, such time to occur in the UK unless otherwise agreed;
ii)For a period of not less than 14 days in the child's summer holidays each year, such time to occur in Sydney, Australia unless otherwise agreed; and
iii)At other times when the father is present in London, including overnight time, provided that the father ensures that the child continues to attend school and prearranged extra-curricular activities when she is spending time with him.
Special Days
In the event that the father is available to spend time with the child on Christmas Day, Father’s Day, the father’s birthday and/or the child’s birthday, the mother shall make the child available to spend time with her father from 12 noon to 5.00 pm on each of such days.
In the event that time to be spent between the child and her father coincides with the mother’s birthday or Mother’s Day the father shall make the child available to spend time with her mother from 12 noon to 5.00 pm that day.
Facilitation
In order to facilitate the child's time with her father pursuant to Orders 7(c) to 7(g):
a)The father shall give the mother no less than 21 days' notice of his intention to spend time with the child in London, including:
i) Dates of arrival and departure; and
ii)His proposed accommodation including address and telephone contact number.
b)The mother shall place the sum of AUD$50,000 in a Trust account to be used for the purposes of payment of the father's airfare costs to the UK up to two times per year; and
c)When the father visits the UK for the purpose of visiting the child pursuant to these orders, the mother shall arrange for accommodation to be provided to him by her siblings, or such other persons as may be agreed without charge for up to a total of 12 weeks per calendar year.
The father and the mother shall keep one another informed of their postal, Skype and email addresses ("contact details") at all times and notify the other in writing no later than seven days prior to any proposed change of contact details of their new contact details.
The mother shall ensure at all times that the child has up-to-date information about the father's contact details, and that such information is kept in an accessible place at the mother's home.
Travel to Australia
The mother shall be responsible for ensuring that the child travels to Sydney once each year commencing in 2015 for a minimum duration of 15 days and the mother shall be solely responsible for all costs associated with such travel by herself and the child.
The mother shall give the father no less than 35 days' notice of her intention to travel to Australia so that the child can spend time with her father, including:
a) Dates of arrival and departure; and
b)Her proposed accommodation including address and telephone contact number.
Changeover
Unless otherwise agreed, changeovers shall occur:
a) In London, at the mother's home or at the child's nursery or pre-school; and
b)In Sydney, the mother will deliver the child to the father's home at the commencement of her time with him; and the father will return the child to the mother's accommodation at the conclusion of the child's time with him.
Communication
The child shall communicate with her father as follows:
a)By Skype or if Skype is not available, telephone, on no less than 2 occasions per week and both parents shall ensure that such communication occurs on special occasions including Christmas Day, Father's Day, the child's birthday, and the father's birthday;
b)The father may communicate with the child by sending to her letters, cards, photographs, videos and gifts;
c)The mother shall do all acts and things necessary to ensure that the child receives all letters, cards, photographs, videos and gifts sent to her by the father and the mother shall assist and / or encourage the child to read such communications; and
d)The mother shall do all acts and things necessary to ensure that any birthday, Christmas or other gifts sent or provided to the child by the father are received by the child and the mother shall encourage the child to open such gifts and acknowledge receipt of them to the father.
The mother shall facilitate any reasonable request made by the child for telephone, written or Skype communication with the father.
Medical and Education
The mother shall at all times ensure that the father is provided with up-to-date contact details of:
a)any doctor, psychologist, counsellor, therapist or allied health professional that the child may consult; and
b)any school or learning facility (including any nursery) which the child may attend.
The mother shall at all times ensure that:
a)Any school which the child may attend; and
b)Any doctor, psychologist, counsellor, therapist or allied health professional is authorised to provide information to the father about the child's progress and development.
The mother shall ensure that the father is provided with:
a) a copy of the child's school reports as and when they are issued;
b)copies of any medical or other reports related to the child's physical or mental health; and
c) a copy of the child's school photograph each year.
The mother shall send to the father, on a no less than monthly basis, photos and artwork of the child and she shall keep the father informed about the child’s achievements and activities either by email or post, depending on the contents.
Enforcement
Both parents shall do all acts and things necessary to either:
a)register these orders in the UK so that they are enforceable in that country; or
b)have orders made in substantially identical terms to these orders (with only such amendment as may be necessary to comply with UK law) in or by a competent court exercising family law jurisdiction in the UK,
AND any costs associated with compliance with this order shall be borne by the mother.
Costs
The mother and the father shall each pay:
a)the sum of $3,900.00 to Legal Aid NSW within 60 days by way of contribution to the costs of the Independent Child Lawyer; and
b)the sum of $1,210.00 to Dr M within 42 days, in respect of his attendance at Court for cross-examination.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Milford & Mansell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3889 of 2013
| Ms Milford |
Applicant
And
| Mr Mansell |
Respondent
REASONS FOR JUDGMENT
S Milford Mansell (“the child”) is only 26 months of age. Her parents are Ms Milford and Mr Mansell. For convenience I shall refer to them as “the mother” and “the father”.
The parents have been unable to agree on the parenting arrangements for their daughter. They have asked this Court to determine the future parenting arrangements for the child.
Applications
The details of the orders sought by each of the parents and by the independent children’s lawyer (“ICL”) are set out in “Annexure A” to these Reasons.
In short, the mother is asking for permission to relocate the child’s residence to the United Kingdom (“UK”) forthwith.
The father asks the Court to dismiss the mother’s application. He considers it in the child’s best interests to remain living in Australia where she can spend frequent regular periods of time with him.
The ICL supports the relocation of the child’s residence to the UK but on the basis of detailed orders to provide opportunity for the child to develop a meaningful relationship with her father.
Background
The relevant background facts are as follows.
The father, 45 years, and the mother, 36 years, met in London where the father was working in February 2005. They commenced a casual relationship. The father was Australian and the mother British. They are both now dual citizens of Australia and the UK.
The father returned to Australia in September 2006.
In early 2007 the mother visited the father in Australia for two weeks.
In August 2007 the mother commenced a secondment in Sydney with an international accounting firm, X Firm.
By early 2008 the parties were in what the father described as a “committed” relationship.
During 2008 the father became depressed and he obtained assistance from a clinical psychologist Ms A. An internet business in which the father had an interest was failing.
The father denied that he tried to commit suicide in 2008, but it became clear that he made a serious attempt on his life at this time. I shall refer to this again below.
The parties separated in approximately late 2008.
In August 2009 the father relocated his residence to his father’s farm in New Zealand. His step-mother had suffered a stroke and the father wanted to provide support to his father.
The parties spent Christmas 2009 together in Australia, then the father returned to New Zealand. Between 2009 and 2011 the parties visited one another spending time together in Sydney and in New Zealand.
In June 2011 the parties travelled to the UK to attend the wedding of the mother’s brother. During this holiday the father proposed to the mother. They became engaged. At approximately this time the mother became pregnant. After their holiday the mother returned to Australia and the father returned to New Zealand.
The father was in Australia between 25 and 29 August 2011. He returned to Australia from New Zealand on 30 September 2011 and went back to New Zealand on 10 October 2011.
In approximately September 2011 the parties’ relationship started to deteriorate.
In November 2011 the maternal grandmother came to Australia and assisted the mother who was experiencing some complications with her pregnancy.
The father remained in New Zealand for two months and returned to Australia on 8 December 2011. He went back to New Zealand on 11 January 2012.
The father returned to Australia on 12 February 2012 for the child’s impending birth.
The child was born in March 2012. The father was present at the child’s birth.
The maternal grandmother also came to Australia in March 2012.
In March 2012, when the child was only a few days old, the father returned to New Zealand.
The father returned to Australia and remained here between 12 and 30 April 2012.
The mother and the child visited the UK from 28 April 2012 to 22 May 2012.
The father was in New Zealand from 30 April 2012 to 10 May 2012 when again he returned to Australia and remained here until 11 June 2012.
The father remained in New Zealand until 8 August 2012, when he came to Australia.
Commencing on 13 August 2012 the maternal grandmother again visited the child and the mother until 9 October 2012.
The father returned to New Zealand on 16 August 2012 and remained there for more than three months, returning to Australia on 24 November 2012. The father remained eight days then returned to New Zealand on 2 December 2012.
The mother and the child visited the father and paternal grandfather in New Zealand from 17 to 29 September 2012.
Between 24 October and 3 December 2012 the maternal grandfather stayed with the child and the mother.
The parties separated on a final basis in November 2012.
From 2 December 2012 to 12 January 2013 the father was in New Zealand.
Between 3 December 2012 to mid-January 2013 the mother and the child holidayed in the UK with the mother’s family for Christmas.
The father was in Australia from Christmas Day 2012 to 26 January 2013. The father asserted that he has been living permanently in Australia from January 2013. But I have the view that his permanent residence here commenced in approximately July 2013. I shall refer to this again below.
From 26 January 2013 to 2 March 2013 the father was in New Zealand.
In late February 2013 the mother was due to return to her employment. But the child was ill so the mother had to take a week off work.
In March 2013 the mother returned to work for 4 days per week, placing the child at the C Nursery. The father came to Australia for the period from 2 to 14 March 2013. He was staying at the mother’s home.
On 9 March 2013 there was an altercation between the parties and the police were called to the mother’s residence. I shall refer to this again below.
In March 2013 the mother informed the father that she wanted to return to the UK and to live there with the child.
The father was in New Zealand from 14 March to 9 April 2013. He returned to Australia for 13 days from 9 to 22 April 2013.
The father was in New Zealand from 22 April 2013 to 13 May 2013.
On 1 May 2013 the maternal grandmother returned to stay with the child and the mother to provide the mother with support.
From 13 May to 3 June 2013 the father was in Australia.
On 27 May 2013 the mother and the child moved to stay with a friend at Suburb K at a reduced rent.
On 30 May 2013 the mother and father attended a joint mediation session.
From 3 to 20 June 2013 the father was in New Zealand.
In June 2013 the mother became an Australian citizen.
The father returned to Australia for 14 days from 30 June to 14 July 2013. He spent from 4 to 26 July 2013 in New Zealand for his step-mother’s funeral.
In July 2013 the father’s solicitor informed the mother in writing that the father did not consent to the child’s residence being relocated to the UK.
On 12 July 2013 the mother filed her Initiating Application seeking permission to remove the child to live in the UK.
The father returned to Australia on 26 July 2013 and remained here until to 29 November 2013.
On 8 August 2013 the father filed his Response.
On 9 August 2013 the mother received confirmation of a conditional job offer with X Firm in the UK.
On 19 August 2013 the parties attended a joint mediation session.
On 26 August 2013 this Court made interim orders including orders that the child spend time with her father on Mondays and Thursdays for 1 hour and 15 minutes and that the father could stay on for the child’s evening routines as well as Wednesdays and Saturdays from 8.30 am to 12 noon. The parents were also restrained from removing the child from Australia.
In October 2013 the father commenced unsupervised time with the child.
In October and November 2013 the parties attended this Court’s child responsive program with family consultant Ms B.
From 21 to 29 November 2013 the father was in New Zealand.
From 29 November 2013 to 16 March 2014 the father was in Australia.
In December 2013 the proceedings were listed for final hearing, an ICL was appointed for the child and Dr M, child, family and adult psychiatrist was appointed as the Chapter 15 single expert.
On 18 January 2014 the father moved to a rented apartment at Suburb U to be closer to the child.
In March 2014 the parties attended interviews with Dr M.
From 16 to 23 March 2014 the father was in New Zealand.
Credit
The mother
The mother was quite softly spoken and on a couple of occasions tearful. But she managed to give her answers in a responsive manner.
I regard her to be a truthful witness.
The maternal grandmother, Mrs N
Mrs N is the child’s maternal grandmother. She resides in the UK.
She was forthright and responsive in her evidence and I regard her as a witness of the truth.
The mother’s brother, Mr N
Mr N is the mother’s brother. He also resides in the UK. He was responsive in his answers to questions and I regard him to be a truthful witness.
The father
There are some difficulties in terms of the father’s credit. In particular, he was asked questions about various paragraphs of the mother’s affidavit concerning alleged behaviour by him on 15 January 2014. The thrust of these paragraphs was that he behaved impatiently and even offensively in the presence of his mother and the child’s maternal grandmother on an occasion when he was to spend time with the child. The father denied the specific behaviours attributed to him. Yet during his mother’s cross-examination she agreed with the version in the mother’s affidavit. In my view this reflected poorly on the father.
The father said that he commenced living permanently in Australia in January 2013. The mother said that in fact it was approximately mid-2013. The father’s mother also said that it was approximately mid-2013. I prefer the evidence of the mother and the father’s mother over that of the father about this. As indicated above, it is clear the father spent much of the period from January to June 2013 in New Zealand.
Dr M indicated that the father was untruthful during the interview with him by minimising the extent of his mental health difficulties and his experience with alcohol and illicit substances.
In my view these matters raise serious questions about the reliability of the father’s evidence. Where his evidence conflicts with that of other witnesses, generally I would prefer the version of the other witnesses.
The paternal grandmother, Mrs L
Mrs L is the child’s paternal grandmother. She was responsive to the questions and unhesitating when giving her answers. Mrs L demonstrated a ready recollection for matters of detail. She impressed me as being a witness of the truth.
Dr M
Dr M is a child, family and adult psychiatrist. He is the Chapter 15 single expert witness. He interviewed the parents and their respective mothers, and he observed the child for the purpose of preparing his report dated 31 March 2014. Dr M was cross-examined in relation to his report during the hearing.
Where I have made reference to observations and/or opinions of Dr M, I accept these unless otherwise indicated.
Submissions
ICL
The ICL’s submissions were to the following effect.
The child’s best interests would be served by a prompt relocation of her residence to the UK. What the child requires for her future development is a happy, stable and content mother and this cannot be achieved by the mother remaining in Australia. The ICL referred to the emotional and practical support that the maternal family can offer and submitted that relocation must occur as soon as possible.
With respect to parental responsibility, the Court must apply the presumption of equal shared parental responsibility because there is no evidence of abuse or family violence. But this presumption may be rebutted if evidence satisfies the Court that it is not in the child’s best interests for her parents to have equal shared parental responsibility.
If relocation was permitted, it would not be in the child’s best interests for the parents to have equal shared parental responsibility for reasons of impracticability. The father told the Court he would be likely to visit the child in the UK on two occasions per year. The child has a heart murmur, she might need ongoing early intervention services to deal with sleeping and settlement in the evening and she was showing symptoms consistent with the onset of separation anxiety disorder. In this context, the child requires decisions to be made promptly and by the parent with care of her at the time. Hence equal shared parental responsibility would not be practicable.
The father conceded during cross examination that if the child and the mother relocated, he would defer to the mother regarding most decisions. But he wanted input into the child’s primary and secondary education. The ICL therefore sought orders that place an obligation on the mother to consult and inform the father in relation to those matters.
In addressing the living arrangements for the child and the place where she should live, the capacity of each of the parents to provide for and meet the child’s needs is an issue that goes to the heart of the case. There are realistically two proposals. These are that the child live primarily with the mother in Australia, or that the child live primarily with the mother in the UK. While the father does seek shared care in the future, the mother is the child’s unchallenged primary caregiver. The father at no time sought an order that if the mother chose to relocate, the child would remain in his sole care.
The child is an Australian citizen and she is entitled to maintain a connection to Australia, which is part of her background and makeup.
The expert evidence makes it clear that the child’s best interests would be served by a prompt relocation of her and the mother to the UK. Such a move would provide emotional and practical support to the mother through her family and stability of employment.
The mother is currently depressed and the child is wholly dependent upon the mother to have her needs met. The mother has parented her with sporadic and minimal practical support from the father. The father has spent large amounts of time overseas. While he has maintained a greater degree of interest and commitment to the child in the last ten months than previously, he has continued to travel overseas to spend time with his family and attend to other commitments including his business. In short, the Court cannot be confident of the father’s commitment to remain in Australia and be available for his daughter.
Three days after commencing these proceedings the father left for New Zealand and travelled there on further occasions. During the same period, the mother has been restrained from travelling or moving to the UK, notwithstanding her distress at large and her father’s poor health.
The child has demonstrated symptoms of separation anxiety, which Dr M recognised as a precursor to mood disorders. The predicament that the child finds herself in, namely that she has an impaired mother, must be addressed promptly. It is not a situation where medication and therapy will guarantee resolution.
Relocation will have significant impact on the child’s ability to spend time with the father, not only due to issues of practicability and expense, but also due to the difficulties that distance poses in developing an age appropriate regime for contact with the father. However, the risk to the child’s long term mental health if the mother is forced to stay in Australia outweighs the need for an optimal relationship with the father.
Dr M’s evidence included that the child will not retain a narrative memory of her father if she leaves the country before four years of age. But he said that she will retain a procedural memory of the father based on her experience of her relationship with him to date. In this context, it would be important for the Court to make orders appropriate to the child’s age and development. It is conventional for a child of this age to have frequent but short periods of contact. In developing a time regime, each and every contact with the father would require a re-introductory period. The scheme of orders proposed by the ICL would provide time at the beginning of each visit for a gradual reintroduction. Further the orders would introduce overnight time at the age of three and ensure that when the child reaches school age the orders will fall into line with school holiday commitments.
The Court should consider orders for regular and recurrent communication between the child and the father, providing the child with an opportunity to see the father’s face and hear his voice. Such orders would assist in the child’s procedural and narrative memory development.
The Court should have comfort in the mother’s support of the child’s relationship with the father to date, and that Dr M had given evidence that neither parent was undermining of the child’s relationship with the other.
In conclusion, the orders sought provide for a relationship with the father which although not optimal is still meaningful. The orders reflect a compromise necessary to reduce the risk to the child’s wellbeing which is impacted by the mother’s unhappiness and distress at being in Australia.
Father
The father’s submissions were to the following effect.
The child has a close relationship with her father. The Australian Parliament did not intend that it would be in a child’s best interest to permit relocation overseas upon the child’s primary parent becoming unwell and the parent refusing to do anything about it.
Relocation of the child to the UK would not be in her best interests. It would be inevitable that the child’s relationship with the father would be severely damaged. The mother should seek medication and therapy which would enable her to more effectively parent the child and remain in Australia.
Dr M agreed (in answer to a suggestion by learned counsel for the father) that it might be possible that if the mother knew she could not relocate to the UK, knew she could visit the UK for two months annually, was taking medication and having therapy, her internal voice and narrative could change in the child’s best interests. Learned counsel also referred to the mother’s evidence that if she were not permitted to relocate the child’s residence to the UK, she would do all in her power to get well and be the best mother she could be for the child.
The mother clearly has an internal conversation to the effect that life is hopeless in Australia. However, the stress of the court case must contribute to the mother’s current state of mind. The stress of the court case is a common cause of anxiety and depression and something the Court should take judicial notice of. The mother has used the proceedings to demonstrate her inability to cope and has done so by refusing to take treatment.
The mother has a full time position with X Firm in Sydney which offers a similar salary to the position offered in the UK. The mother has made no attempts to seek more stable accommodation in Australia.
The child will benefit from having a significant and substantial relationship with both parents. This cannot be achieved if she goes to the UK forthwith.
The balancing factor in this case is the potential for the child to forget her father and the need for her re-introduction to him twice per year in the foreseeable future. Dr M’s evidence was that the child would lose her memory of her father by Christmas 2014 despite limited Skype contact and stories. Therefore, the child should remain in Australia for a significant period of time.
In relation to the mother’s credit, the mother was not credible in not attending to her emotional needs until after the proceedings concluded, that she has conducted herself throughout the proceedings as a victim and used her psychological state as an excuse to say that if she cannot take the child to England that the child will suffer emotionally/psychologically when she had a clear choice to obtain medical and professional assistance.
The mother has not addressed any proposal for the parenting of the child if she is not permitted to relocate. The father has demonstrated a capacity to care for the child on an unsupervised basis.
Mother
The mother’s submissions were, in substance, in line with those made by the ICL. They were to the following effect.
With respect to parental responsibility, each parent should continue to have parental responsibility for the child pursuant to s 61C of the Act. However, if the child was to remain in Australia, equal shared parental responsibility would be appropriate.
In addressing the s 60CC considerations, Dr M has made it clear that the child could not be separated from her primary carer and that the effects of a relocation on the child’s relationship with the father, although detrimental, do not outweigh the risk to the mental health of the child and her mother in the event that they must remain living in Australia.
The father has, for the majority of his life, put his own financial, family and other needs, including social needs, ahead of the child’s needs. The father’s commitment to the child has only emerged in the last 10 months since the proceedings commenced. Prior to that he placed the needs of others ahead of those of his daughter.
Were the mother and the child to remain in Australia, there would be such a deterioration in their health that further proceedings would be likely.
On 12 June 2014 there arrived in my chambers a different version of written submissions by learned counsel for the mother from the written submissions which counsel presented on 29 May 2014. I decided not to read the later version because it might raise the possibility of something different from that originally presented in respect of which there would be no opportunity for the other parties to address.
Incident in March 2013
As indicated above, an incident occurred in March 2013 where the police attended the mother’s residence due to an altercation between the parties.
A party had been organised that day to celebrate the child’s first birthday. At approximately 4.30 pm at the conclusion of the party, the father and the child returned to the mother’s home. The father had agreed to look after the child at the mother’s home for the evening while the mother and some friends remained out to celebrate. The mother returned home with three friends at around 8.00 pm. The mother conceded that she was intoxicated. Her friends were also intoxicated.
When the mother and her friends returned to the house, the child awoke. The father went upstairs to settle the child. He was tired and said he was ill.
The mother was sitting on the sofa, where the father was to sleep that evening, holding a bottle of coca-cola. It is clear that the mother accidentally spilt coca-cola on the sofa and that the father subsequently tried to extract the bottle from her hands.
The mother alleged that the father was furious, that he grabbed the bottle of coca-cola and tipped the entire contents over her head, shaking the bottle violently, screaming and swearing. It was common ground that the mother was covered in coca-cola and crying hysterically.
The mother and her friends asked the father to leave several times. The father refused to do so and one of the mother’s friends called the police.
The father said that he did not refuse to leave and that calling the police was unnecessary.
It is common ground that the police arrived and asked the father to leave, which he did.
The father gave a different account from that of the mother about the coca-cola being further spilled. He said that he squeezed the bottle to get a better grip and the coca-cola shot up into the air and over the mother and the surrounding area.
Ms V, one of the mother’s friends who attended on the evening in question swore an affidavit. She said that she saw the father pick up the coca-cola bottle and he shook the contents over the mother and the (sofa). She said that he was angry.
Ms V was not cross-examined by the father. I accept her evidence and prefer her account and that of the mother over that alleged by the father.
On the following day, the father sent the mother a text message. The mother invited the father to see the child that day. She gave evidence, however, that she was frightened of the father following the incident.
Learned counsel for the father submitted that little should be made of this incident because the parties were back in communication on the following day.
I must say, in my view, although the mother was intoxicated and things obviously ran out of hand, the incident reflects poorly on the father in the sense that it is an example of the impulsive, volatile, uncontained behaviour about which the mother and Dr M have expressed concern. His account of the incident also reflects poorly on his credit.
This occasion appears to have brought about the final separation of the parties.
Incident on 15 January 2014
The mother gave the following account of an incident on 15 January 2014.
The father and his mother returned the child home after a morning out. A short time later the maternal grandmother returned to the mother’s home. The child reached out to her. At this, the father said “we are leaving, I am sick of this”. The mother offered for her mother to leave the playroom and suggested to the father that he not spoil his time with the child. The paternal grandmother tried to calm the father down by patting his back. The father took his mother to the front door and the mother, maternal grandmother and the child followed to say goodbye.
The maternal grandmother suggested to the father that he not leave and the father responded as follows:
I am sick of being an observer. I will be getting my lawyers to write to you, you are breaking court orders. I have been flexible to date, but if you are going to play it like this, then fine.
The maternal grandmother replied that she was living at the home, that she had read the court orders and that she was permitted to be there. The father took issue with this. The maternal grandmother then invited the father back into the home and suggested he calm down.
At this point the father became very agitated, came into the house, pointed at the maternal grandmother and said words to the effect: “what is a woman of your age thinking of behaving like that.” The mother informed the father that he was behaving like this in front of the child and she asked him to stop. The father responded by shouting to the effect that he would be getting his lawyer onto the matter.
On the other hand the father gave a different account.
The father denied that he said “I’m sick of (this)” and that his mother tried to calm him down by patting his back. He also said that he could not recall other parts of the mother’s account which reflected poorly on his behaviour on that occasion.
Yet the paternal grandmother, during her cross-examination, was able to recall the matters specifically denied by the father and her recollection of this matter overall was in accordance with what was alleged by the mother.
I prefer the evidence of the mother, as confirmed by the father’s mother, over that of the father about this matter.
Mental Health
Both parents have mental health issues. Dr M reported as follows.
The mother
At the age of 22 the mother experienced her first depressive episode. She was treated with Dothiepin, a commonly used antidepressant. At age 23 the mother was admitted to hospital after taking eight Dothiepin tablets. She had felt overwhelmed and had “just wanted to sleep”. She had benefited from cognitive behaviour therapy.
Currently the mother was intermittently tearful, could not sleep and her hair was falling out. She was not eating and had lost three quarters of a stone in weight. Her energy was variable. She had difficulty in coping with work. She would be woken by the child repeatedly during the night and she would typically replay “horrible scenarios” in her mind and go to “very dark places” at times she felt overwhelmed. She found her circumstances to be “quite crippling”. She had therefore consulted Ms G, a counsellor. She stated that she had a lot on her plate and was struggling to manage complex emotions and situations and still be there for the child. She worried about her work situation and missed her family.
She did not feel she required antidepressant medication.
She acknowledged being intoxicated by alcohol at the time of the “coca cola” incident and having used drugs on several occasions prior to her pregnancy, including cocaine and pills.
The father
Dr M reported the following in relation to the father.
He minimised the extent of his depression and suicidality, unstable mental state and history of substance abuse. In 2008 the father lost an internet company in the global financial crisis. He experienced “dreadful” depressive symptoms. His general medical practitioner (“GP”) prescribed medication.
Ms A, psychologist, provided supportive therapy to the father weekly until August 2009. He was suicidal in response to financial difficulties and was referred to Dr Y, consultant psychiatrist, who prescribed medication.
In August 2009, Dr Y recorded the father as having been acutely depressed over a number of years. Dr Y recorded the father as being fearful of his suicidal feelings should he stay at the family farm in New Zealand where his father lived alone. There were firearms at the farm. Dr Y diagnosed the father as suffering a major depressive disorder at that time.
In 2012 the father’s GP referred him to Dr D, consultant psychiatrist. In March 2012 Dr D recorded the following. In 2009, when the father had returned to the farm in New Zealand he ran out of medication and did not bother to recommence the medication. His mood began to deteriorate and as a result he decided to take his own life. Despite having access to guns, the father decided to cut his forearms but thankfully the attempt was unsuccessful.
Dr D also recorded that in the two years prior to March 2012, the father’s mood had continued to fluctuate between mild and severe depression. She noted that the father abused alcohol regularly throughout his teenage years, commenced using cannabis at age 16, began snorting speed at age 19 but eventually stopped using this as he had graduated to other drugs. He began using methamphetamine then used this every weekend for 20 years. He used LSD on two occasions and used cocaine for 10 years. For 12 months the father abused prescription medication.
Dr D diagnosed the father as suffering from clinical depression but said she could not rule out bipolar affective disorder II, currently in a depressed phase. Dr D prescribed mood stabilising medication. She also recommended that the father engage in psychodynamic psychotherapy to address issues of abandonment and low self-esteem, and to assist him to understand the consequences of his impulsive behaviour.
At interview by Dr M, the father reported that he had been prescribed Tegretol by his GP. Dr M identified this to be a mood stabiliser treatment for bipolar disorder rather than an antidepressant. The father informed Dr M that within a fortnight of commencing on Tegretol he felt more focussed. Dr M said that the father was vague and not forthcoming about his diagnosis and management.
Dr M said that the father reported a stable current mental health. He was eating well, sleeping well, with good concentration, good motivation and normal reactive mood. He had maintained the medication, as he had felt stressed and was down again when it had been previously ceased.
I shall refer again to these matters below.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
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 (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.
Sub-section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Sub-section 61DA(2) of the Act provides in effect that 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 family violence or abuse of the child or another child who was a member of the parent’s family.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In relation to the law concerning relocation cases, I respectfully agree with the following observations of Murphy J in Cowley v Mendoza 43 Fam LR 436 at p 443:
A “relocation case” is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. This is not the case in the present proceedings
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her.
I shall return to consider the question of parental responsibility after taking account of the relevant best interests considerations.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.
Sub-section 60CC(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
The child is only 26 months of age and obviously much too young to express any views.
Sub-section 60CC(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)
Dr M observed a secure attachment between the child and her mother. They were observed to share an imaginative and playful relationship. He said that there was a delightful rapport, with mother and child highly responsive to one another. The mother played with the child at a pace matching her exploration. He said that the mother recognised the child’s desire to draw, setting up the drawing materials and encouraging her to choose colours. He said that the child was alert and communicative in her drawing and that she repeatedly engaged with her mother. He said that the mother encouraged the child’s communication in an age-appropriate way.
Dr M said that at the interview, the child although initially enthusiastic, looking out for her daddy, when daddy arrived the child was reluctant to separate from her mother to give her father a hug and she wanted food from her mother rather than from him. She became upset and clingy. She had difficulties transitioning to her father’s care. A little later, with her mother’s encouragement, she played a running game to go to her father. She jumped excitedly with her father off the chairs.
The father informed Dr M that the child had been more clingy in recent months.
Dr M described the father/daughter relationship as “emergent”.
Sub-section 60CC(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 and to spend time with the child and to communicate with the child
It is the mother who has made most of the decisions about the child. From the time of the child’s birth until mid-2013, the father was absent from Australia for significant periods endeavouring to support his father in New Zealand. I shall refer to this in more detail. But as a consequence, the father has only been available to spend limited time with the child and most of the significant decisions about raising the child have had to be made by the mother.
Sub-section 60CC(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
The major financial burden for supporting the child has fallen to the mother. She has been employed in a well-paid professional position with X Firm. On the other hand, until recently, the father has been working on his father’s farm in New Zealand and also deriving some income from his business. But his income has been very low. His income tax returns demonstrate that over the last five years he has had a very low level of income and certainly well below what would now be required to meet his expenses.
I accept that over the period from July 2012 to April 2014 the father paid to the mother either by direct payments to her or by paying accounts on her behalf, amounts which come to a total of approximately $560 per month. This was approximately $130 per week which would be regarded by this Court as a very modest amount of child support.
Sub-section 60CC(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 or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr M said that in the event that the child was removed from her mother’s care she would experience a significant and sustained emotional disruption. So clear was Dr M in his view about this, particularly given what he described as the secondary and intermittent parenting role played by the father, that he could not conceive that such a situation could possibly occur.
Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is a very relevant consideration. If the child’s residence was relocated to the UK, in circumstances where the father has indicated he is not prepared to relocate his own residence to the UK, obviously this would place substantial limitations on the child’s opportunity to develop her relationship with her father.
The father said that it would be impossible for him to move his residence to the UK. He is in the early stages of developing his business in Australia. He said that it would be impossible for him to develop the business in Europe because the market would be too large for him to be able to produce sufficient products to satisfy demand. Although the father has had experience in the banking industry in the UK, his inquiries have indicated that there are few employment prospects available in that industry for a person with his skills and experience. In these circumstances I accept that it would be difficult for the father to relocate his residence to the UK.
One could not realistically expect the father to make more than, say, two flights to London each year. He said that he needs to concentrate on his business so that time for holidays would be limited to approximately four weeks per year. He could extend his available time in Australia by working only half-days if the child was in Australia. There would be considerable expense involved.
But the mother’s relocation application is on the basis that she would deposit $50 000 for the father’s use to fund his airline flights. She would also travel with the child to Australia each alternate year for the child to spend time with her father.
One would have thought that the mother could travel to Australia with the child for at least one holiday period each year which might alleviate some of the burden on the father for travelling. It was said on her behalf that the $50 000 trust fund to assist the father was calculated on the basis of the mother flying with the child to Australia on one occasion each alternate year.
On the other hand, if the child was to remain living in Sydney there would be no practical difficulty in her spending substantial and significant time with her father provided that he was able to continue to reside in Sydney.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The mother works as an Associate Director with X Firm four days per week. Her income is $120 000 gross per year. Her preference would be to accept a current offer of employment by X Firm in London as a senior manager. The commencing salary would be £100 000 together with an entitlement to participate in the X Firm employee bonus plan. Unless the mother was able to accept this offer of employment within the next month or so it appears unlikely that it would continue to be available to her.
There is also some uncertainty about continuation of the mother’s present employment because she has completed her recent project. I think it more likely than not, however, that the mother, as a long time employee of X Firm, would be able to obtain a continuation of her Australian employment with X Firm on different projects.
I have referred above to Dr M’s observations about the mother’s competence in the play session he observed between her and the child. Dr M also described the mother as having consistently attended to the child’s needs as her primary parent.
There are uncertainties concerning the father’s capacity to parent the child. The father’s availability to contribute to parenting the child has been limited during most of the period since the child’s birth by his absence from Australia for significant periods. For example, during the first half of 2013 the father was only in Australia for 82 days. The remaining part of his time has been spent in New Zealand supporting elderly family members and assisting his elderly father to manage his farm. The consequence for the child has been that her opportunities for developing a relationship with her father have been limited.
The father assures the Court that his priority now is to attend to his responsibilities as a parent of the child. He says that he is now residing in Sydney permanently. As indicated above, I regard the father as having lived here permanently since July 2013. He has a twelve month lease on an apartment at Suburb U. He says that he has the financial capacity to meet his living expenses including accommodation and to pay child support as assessed. The father assures the Court that his business E Company will be successful when it commences distributing product to the Sydney retail market which is expected by the father to occur in July 2014. At the present time the possible success or otherwise of this venture is unknown.
Dr M said that the father has a strong motivation to play a committed role as the child’s father.
The other area of uncertainty about the father’s parenting capacity flows from the mental health issues he has been experiencing. As indicated above, Dr M made some criticism of the father for having minimised the extent of his mental health condition. Upon Dr M questioning the father about these matters initially, the father rejected any history of upswings in mood, comorbid anxiety or obsessive compulsive symptoms. He initially informed Dr M that there was no family history of psychiatric illness but acknowledged that his sister had post natal depression. He insisted that he had never threatened suicide.
But upon Dr M making further enquiries it emerged that the two psychiatrists referred to above (Drs Y and D) whom the father had consulted previously, had identified signs of a major depressive disorder, possible bipolar affective disorder and prominent suicidality. Dr M said that these assessments were consistent with the concerns of the mother that the father had been unstable and volatile. He also said that Dr D had detailed the father’s underlying personality vulnerabilities with issues related to abandonment, low self-esteem and impulse control problems.
Dr M also said that the father had failed to attend psychiatric follow up but had benefited from the maintenance of mood stabilising medication. He said that therefore, although on mental state examination the father was identified as normal, questions remained with regard to his ability to provide a stable base for his family. He said that unlike the mother, the father lacked insight into his personality and had difficulty in assimilating the impact of his own developmental experience of separation and loss.
Dr M also said the following. The father’s developmental experience had been disrupted. He had experienced loss in his childhood and had been placed in boarding school at a young age. His mother had lacked any awareness of the impact of these matters on her son’s development. The father’s history is one in which he has had multiple changes and relocations in work and his relationships have been unstable. He has experienced recurrent and profound depressive symptoms and used many illicit substances until recently. He has failed to maintain a stable place of residence in the context of this lifestyle except for the extended period on the family farm in New Zealand during which period he was depressed and did not want to be there.
Dr M said that this history of the father was not predictive of a stable and consistent approach to life or having the ability to maintain a stable role. But the father did express a wish to play a stable role in his daughter’s life. Dr M said that generally as people grow older and mature, such impulsive behaviour is likely to settle. He said that this would tend to suggest that at least there is the possibility of the father finding some stability.
Dr M said that by minimising his mental health history, the father made it difficult for him to assess the father’s state of mental health.
In my view there is no doubt that the mother is a competent parent subject to her vulnerability to experience depression and anxiety. It is clear that the child is a bright and energetic child and that she is doing well in her mother’s care. The mother has demonstrated considerable stability by being able to continue to manage her employment notwithstanding the demands of being a single parent. But on her own report she is only just coping.
On the other hand the father is largely untested as a parent. There can be no denying his desire and motivation to be a good parent for his daughter. But he has a history of instability and behaviour which is quite inconsistent with responsible parenting. Dr M identified the father’s history as being of particular concern.
Each of the child’s grandmothers has some capacity to assist in providing for her needs. Each of them has spent time with the child.
Dr M had an opportunity to include each grandmother in his interviews. His report included the following observations.
Both parents are supported by their extended families.
The maternal grandmother was gravely concerned about the mother missing her family and her “imprisonment” in Australia. She emphasised the security and stability available for the child in the UK from her large supportive family there.
The paternal grandmother identified her own mother as having experienced depression which required medication and hospitalisation. She said she had not realised that the father had experienced depression as he had been overseas. She had tried to have as much contact with the child as possible, being present for the father’s contact visits on Wednesdays and Saturdays.
The maternal grandmother spoke in a thoughtful, aware and insightful manner about her concerns regarding the mother and the child. Her account demonstrated her awareness of the mother’s experience and fragility and deep concerns for the child’s welfare. This contrasted with the paternal grandmother’s lack of awareness concerning her son and granddaughter. The paternal grandmother demonstrated a lack of awareness of the developmental impact of experiences of separation and loss on the father. She spoke in a somewhat flippant and disengaged manner about his life experience.
The maternal grandmother said that she had a good relationship with the father and was respectful of his role as her granddaughter’s father. She referred to her own commitment in raising two stepchildren and her recognition of the importance of family relationships. She and the mother consistently encouraged the child’s engagement with her father
Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Like her parents, the child has Australian and British citizenship. In my view her best interests would require that, whichever country she is to reside in, there be opportunity for her to visit the other country in order to live, at least to an extent, in its cultures and traditions.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother said she considers it important for the child to have a relationship with her father if the child is to become a well-rounded individual. She recognised that the father was motivated to be a part of the child’s life. She said that her proposed relocation to the UK is not intended to deny the child a father nor favour one family over the other.
Dr M regarded the mother as motivated to ensure the maintenance of the child’s relationship with her father even if he was unable to join them in the UK.
Dr M said that at the interview session the mother was encouraging and supportive while handing over the child to her father.
In my view, the incident on 15 January 2014 illustrates that the father feels quite a level of frustration that the child is not more responsive to him and he sees the mother as not having afforded him as much opportunity to spend time with his daughter as he would like. But the child is very young and the mother also has to fit in her employment around the parenting requirements.
A prominent obstacle to the mother being prepared to offer the father more time with the child appears to have been the father’s refusal to permit the mother to relocate the child’s residence to the UK.
Dr M said that there was no evidence that either parent was undermining the other’s relationship with the child.
He also said that both parents have demonstrated a suitable attitude to the responsibilities of parenthood.
In my view, however, while this has been evident in recent times, the father did not demonstrate a responsible parenting attitude for a long time following the birth of the child, he having been unable to prioritise the child’s needs above those of his father and stepmother.
Whether the father will be able to maintain his residence in Sydney and make a success of his business in Australia is yet to be seen.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
This is not a case which involves any family violence or abuse.
Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter
This is not relevant.
Sub-section 60CC(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
Dr M has opined that the mother’s current mental health condition is unlikely to resolve even if she was medicated and undertook appropriate therapy. As indicated above, the mother is barely coping even at a low level with both the responsibilities of parenting the child and managing her employment. If the mother and child were to remain in Australia, on present indications, the mother is likely not to be able to resolve her depression and anxiety which would possibly lead to the child’s circumstances and the parenting arrangements again coming before this Court for consideration. Clearly this would not be in the best interests of the child.
On the other hand, if the mother was permitted to relocate the child’s residence to the UK the indications are that she would be more likely to settle there and resolve her mental health issues with the support of members of her family. Assuming that such was to occur, there would be little scope for further litigation except possibly to determine matters of detail for time spent between the child and her father.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
In relation to the father’s application that the parents move over time to an equal time arrangement when the child attains five years of age, Dr M said that it was unclear at the present time whether the father would have the capacity to provide such a level of care given his (somewhat limited) experience in parenting her to date.
Dr M also said that he would not support an equal time parenting arrangement for this child. He said that it is important for the child to have a stable home. He said that for an equal time parenting arrangement to be in the interests of the child her parents would need to have good communication and cooperation, which these parents do not have. He said that an equal time arrangement can be beneficial if the parents live within a reasonable distance of one another which would enable the child to maintain school and sporting arrangements and provided that the parents have similar views and a similar outlook on life.
In any event, Dr M said that he would find it problematical to lock in for this child at this point in time an equal time arrangement upon her attaining five years of age.
Primary considerations and Discussion About Best Interests
On the one hand I accept that it would be in the child’s best interests to be able to enjoy a meaningful relationship with each of her parents. Dr M was clear in his view to this effect and I am satisfied that each parent is motivated to endeavour to achieve this.
On the other hand, as indicated above, the Court is also to consider as a primary consideration, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying this latter consideration the court is to give greater weight to it rather than to the previous primary consideration.
Dr M was very clear in his opinion that the child is manifesting separation anxiety. He said that this is related to the mother’s own anxiety which flows from her depression about her current circumstances. He said that these circumstances include the difficulty and exhaustion the mother is experiencing in endeavouring to parent the child as a single-parent and, particularly, her frustration about not living in the UK and being supported by her family. She has a sense of feeling “imprisoned” in Australia and Dr M said that this is a preoccupation of the mother.
Dr M said that the child is a bright and engaged two year old so he would expect her to be affected by the stresses which the mother is experiencing. He said that this was manifested in the difficulty he observed in the child not wanting to separate from her mother.
Dr M said that if the stress which the child is experiencing is not addressed, and as soon as possible, the child might well be vulnerable to suffering from depression when she grows up. He said that anxiety in a child can be a precursor to depression in adults. Dr M also said that another powerful risk factor for this child is that she has what he described as a “genetic loading” from each side of her family. This was a reference to the fact that there is a history of depression not only in the mother’s family but also in that of the father.
Dr M said that the best prospects for the mother to resolve her depression and anxiety would be for her to relocate her residence and that of the child to the UK where she could be close to her family and have their support.
As indicated above, the father was critical of the mother for not availing herself of appropriate medication and therapy which could possibly improve her current depression and anxiety. In this regard, Dr M said that if he was clinically assessing the mother he would recommend that she take antidepressant medication. He also thought that the mother might be assisted by undertaking some cognitive behaviour therapy which apparently had been of assistance to her when she was approximately 23 years of age.
The mother said that she had not sought medication for her condition because she was still breastfeeding the child. She said that she was worried about possible effects medication might have on the child. Dr M said that he thought it would be of more benefit to the child for the mother to receive assistance from such medication than for the child to have the benefit of breastfeeding.
As also indicated above, learned counsel for the father submitted that in circumstances where the mother had not taken reasonable steps to avail herself of professional assistance by medication and therapy to resolve her mental health condition, she could not reasonably argue that she needed to relocate with the child to the UK in order to best deal with her condition.
But Dr M was not optimistic that if the mother was to comply with taking appropriate medication and undertake a course of cognitive behaviour therapy, yet remain living in Australia, her serious depression and anxiety would resolve. He said that there are a number of reasons for this as follows.
The response rate to taking antidepressant medication is approximately 70 per cent so one could not assume that this would have the required success, because for 30 per cent of users it does not.
Secondly, he said that given the mother’s obsessional nature and her feeling of being imprisoned in Australia, it was unlikely that such intervention would resolve her issues altogether. Dr M acknowledged that he has seen situations where things had dramatically changed upon being appropriately managed. But he also said that he has seen cases like that of the mother, where there has been a perpetuating factor, like the mother’s feeling of being imprisoned, which has stood in the way of the depression and anxiety being able to be resolved.
Accordingly, Dr M maintained his opinion that in order for the mother to better manage her mental health issues and become a better functioning parent for the child, the mother should relocate her residence and that of the child to the United Kingdom.
In my view, the evidence about these primary considerations is clear. If the child is to remain in Australia with her mother it is more likely that her mental health will be seriously compromised than if she was to relocate to the UK.
There is no question that the best opportunity for the child to be able to further develop her relationship with her father would be for her to remain living in Australia. This would permit the regular periods of time between her and her father, which Dr M has said would assist in building a close relationship between them, to continue.
But the price for this would be for the mother and child to remain living in Australia against the mother’s strong wish not to have to do so and the serious likely consequences of this for the child.
Dr M said that the mother’s vulnerability to depression is longstanding. He said that she was correct to view her emotional vulnerability as potentially impacting upon the child’s emotional development. He also said that because of the mother’s obsessional nature there was no indication that her emotional issues would resolve if she was to remain “imprisoned” in Australia.
As indicated above, Dr M was concerned that the father had minimised key aspects of his psychiatric history, his history of substance abuse and his prominent suicidality. He said that the father’s previous psychiatric assessments provided a picture consistent with the concerns of the mother that the father had been unstable and volatile. As indicated above, Dr M said that there was uncertainty concerning the father’s ability to provide a stable base for his family.
The mother has provided the primary care for the child since birth with only very limited assistance from the father. There is no question regarding the relative parenting capacities of the parties. On the one hand the mother has provided stability of accommodation and attended well to the child’s needs, albeit with some assistance of mothercraft nurses and recently with the support of her mother. On the other hand, the father has been unavailable to assist with parenting the child for substantial periods since her birth. He has placed the needs of others above those of the child. He is largely untested in his capacity to care for the child. Notwithstanding that he says the child is now his priority, there remains uncertainty about whether he will be able to settle his own life in order to be in a position to provide stability of care for the child.
The mother says that she is barely coping in managing the demands of being primary parent for the child as well as the demands of her employment. This is placing the child in a position of emotional and psychological risk.
Dr M was asked by learned counsel for the father whether he thought the mother might “rebound” in terms of her state of mental health if she was told by the Court that she could not relocate the child’s residence to the UK, took appropriate medication and underwent appropriate therapy. Dr M said his view that the child’s best interests required the mother to relocate with the child to the UK would change if the mother established stable mental health, established stable accommodation, stable work, social supports, positively engaged in a relationship with the father whereby they were effectively co-parenting the child and if the mother felt positive and comfortable about the life she was creating for the child in Australia and as a family. He said that this would be because such would be a positive environment for the child and it would enable her to have a significant and substantive relationship with her father.
In my view, however, Dr M was unshaken in his clear view that the best interests of the child would be served by the mother being permitted to relocate the child’s residence to the UK. He said that this was because of the likely beneficial effect such a move would have on the mother’s condition and also because it would make it less likely that the child would be vulnerable to depression in later life.
Dr M said that the longer the mother continues to feel depressed, anxious and “imprisoned” in Australia the more problematic it is for not only her but for what he referred to as the “dyad”. He explained that this was the mother and child’s interactions with one another. He said that the longer things continued as they are, the more problematic for the child.
Conclusion
In my view, from the perspective of the child, the best outcome would be for her to be living in the UK with both her parents. I accept however, the father’s assertion that it would not be possible for him to live and work in the UK for the foreseeable future. He said that if he does not make a success of his new business in Australia, then it would be extremely difficult for him to be able to provide for the child. I accept what he says in this regard.
For the reasons set out above, in my view, it is not in the child’s interests to require the mother to remain in Australia. In these circumstances, I am drawn to the position where I am satisfied that the best interests of the child would be served by her living in the UK with her mother as primary parent and spending as much time as is practicable with her father, both in the UK and in Australia.
Parental Responsibility
Having arrived at this position, in my view, it would be quite impracticable for an order to be made that the parents have equal shared parental responsibility for the child. It would be expecting too much of the parents to think that they would be able to exercise such responsibility properly and make important decisions for the child together, when they would be residing such a vast distance apart.
Accordingly, in my view, it would not be in the child’s best interests for the presumption of equal shared parental responsibility to apply.
To the father’s credit, he recognised this and indicated that, if the Court was to determine that the child’s best interests required her to live in the UK he would not press for an order for equal shared parental responsibility. Rather, he would accept that the position set out in s 61C(1) of the Act, namely that each of the parents has parental responsibility for the child, would apply. However, in the event that he was to assume a permanent residence in the UK he would like the Court to provide opportunity for him to enjoy equal shared parental responsibility with the mother in such circumstances.
I accept that the best interests of this child will be served by an order for parental responsibility in line with s 61C(1) of the Act. I do not propose to make a different order in relation to parental responsibility in the event that the father was to assume a permanent residence in the UK. In my view, it would be appropriate to consider such a possibility in the context of all relevant circumstances at such a time.
Appropriate Orders
It will be important to endeavour to craft a set of orders which, while permitting the mother to relocate the child’s residence to the United Kingdom, will provide as much opportunity as practicable for the child to develop her relationship with her father.
Dr M said that given the child’s young age it would be important not to transition rapidly to longer periods of time with her father. He said that the general view amongst behavioural scientists who are experienced in this area is that in relation to very young children, regular short periods of time spent with the non-residence parent will tend to serve their interests better than longer periods. Dr M also said that as the child grows older it is appropriate to increase the length of the periods.
Dr M also said that because the child is so young it would be necessary for her to have a period of reintroduction to her father when commencing time spent with him over the next couple of years. He said that this is because children of S’s age do not have any memory of narrative. That is, she is too young to be expected to have any memory of her experiences with her father to date. Dr M said that he would expect this limitation to continue for the next twelve months at least.
Dr M also said that even though communication by Skype between the child and her father would be of limited value, it should take place. This is because the more activity between the child and her father - hearing his voice, seeing his image and hearing conversation about daddy - the more the likelihood of the child having what he described as a procedural memory of her father and therefore the greater the likelihood of each reintroduction being successful.
Dr M said that the more occasions for the child to have opportunity to spend time with her father each year the better this would be for their relationship. But he acknowledged that the arrangements had to be made in the context of what would be practicable.
As indicated above, he said that clearly it would be to the child’s benefit to be able to maintain her relationship with her father.
I propose to make orders almost entirely along the lines of the form of orders proposed by the ICL because in my view these will best serve the child’s interests. The orders for the child to spend time with her father will be on the basis that the father does not reside in the UK, which he said he proposes not to do. In the event that the father relocates his residence permanently to the UK, it will be necessary for the parents to negotiate different orders for time spent.
In relation to the form of orders, learned counsel for the father made a couple of submissions.
Firstly, he submitted that the spend time periods in the UK of between 14 and 21 days were too restrictive. Yet this regime was based on the father’s evidence that he would endeavour to visit the child in the UK on 2 occasions each year. The father will understand that it would be impossible to craft orders for all eventualities. Doing the best I can, if the father remains in the UK longer than 21 days before the child attains three years, the child shall spend time with him from 8.30 am to 6 pm on the Monday, Wednesday and Friday of any weeks succeeding the 21 days. In relation to the period between her third and fourth birthdays I do not propose any change because it just becomes too difficult, particularly given that overnight time would be involved. If the father was to stay longer than the 21 day period it would be necessary for him to negotiate with the mother for appropriate additional time with the child. The Court would expect the mother to accommodate any such reasonable request.
The other point submitted was that once the child is four years of age and having overnight time with her father, it would be difficult for him to return her to her mother at 8.30 am because of traffic congestion in London. Against this submission I was informed that the rationale for the 8.30 am return was that for young children commencing overnight time with their non-resident parent, it was better to keep their time absent from their primary parent to a minimum. Taking account of these matters I shall extend the time of return to 9 am.
“ANNEXURE A”
The Mother
Orders proposed by the Applicant Mother in the event that she is not permitted to relocate to the United Kingdom with [the child]
If the Mother and [the child] remain living in Australia [the child] shall spend time with the Father as follows:
a.From the date of these orders on each Wednesday and Saturday mornings from 8.30am to 12:00pm with meal and sleep times to occur at Mother's residence.
b.The Father shall collect [the child] from her nursery two nights a week, returning [the child] to Mother's residence for meal and sleep times. Father has option to stay for bedtime routines.
c.Birthdays and Christmas shall be spent by [the child] alternately at the Father's place of residence (odd years) or Mother's place of residence (even years).
d.The transition to overnight stays shall to be managed sensitively, building up over time with the goal that by the time [the child] turns 4 years of age she is to spend time with the Father up to 4 nights a fortnight thereafter.
e.Upon [the child] turning 5 years of age, the parties shall attend Relationships Australia or such other accredited organisation as agreed between the parties in order to assist them in determining the parenting arrangements for [the child] thereafter.
That in the event that the parties cannot reach an agreement about:
a.a major long-term issue involving the [child]; or
b.the interpretation of these Orders; or
c.the implementation of these Orders; or
d.any review of these Orders,
each of the parties will do all things necessary to participate in family dispute resolution as offered by Family Relationships Australia or such other accredited organisation as agreed between the parties.
Amended Final Orders Sought by the Applicant Mother
That the child of the relationship [S] born … 2012 ("[the child]") live with the Applicant Mother.
That pursuant to s 61C of the Family Law Act 1975 each of [the child’s] parents has parental responsibility for her.
Relocation to the United Kingdom
That [the child] forthwith may travel with the Applicant Mother and depart from the Commonwealth of Australia in order to reside the United Kingdom.
That the Respondent Father sign all documents and do all things necessary to give effect to Order 3 herein.
That in the event of the Father failing to execute any document required to give effect to any or all of these orders within 7 days of being requested in writing by the Applicant Mother to do so, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of the Family Law Act to execute such document or documents on behalf of and in lieu of the Father in default.
Time spent with Respondent Father pending departure
That pending the Mother's and [the child's] departure from Australia the Respondent Father shall spend time with [the child] in accordance with the interim orders made 26 August, 2013.
Time spent with Respondent Father if he resides in the United Kingdom
That in the event the Respondent Father elects to reside permanently in the United Kingdom then from that date until March 2017 the following orders shall apply:
a.The Mother shall provide transition accommodation for the Father at the Maternal Grandparents or Mother's siblings home(s) without charge to the Father for up to 8 weeks;
b.The Mother shall hold the sum of AUD $15,000 in trust for up to three years from the date of making of these Orders to be used to contribute to the cost the Paternal Grandmother flying to the United Kingdom to spend such time with [the child] at such times as may be arranged with the Mother and/or for the purpose of the Father returning to Australia and/or New Zealand as required;
c.[The child] shall spend time with the Father whilst he resides permanently in the United Kingdom as follows:
i.Each Wednesday and Saturday mornings from 8.30am to 12:00pm with meal and sleep times to occur at Mother's residence.
ii.The Father shall collect [the child] from her nursery two nights a week, returning [the child] to Mother's residence for meal and sleep times. Father has option to stay for bedtime routines.
iii.Birthdays and Christmas shall be spent by [the child] alternately at the Father's place of residence (odd years) or Mother's place of residence (even years).
iv.The transition to overnight stays shall to be managed sensitively, building up over time with the goal that by the time [the child] commences primary school she is to spend time with the Father up to 4 nights a fortnight thereafter.
Time spent with Respondent Father if he does not reside in the United Kingdom
That from the date of these Orders if the Father chooses to reside outside of the United Kingdom:
a.The Mother shall pay the airfare for the Father to fly to the United Kingdom with Mother and [the child] if he would like to accompany them during the resettlement period and be part of [the child's] relocation process following the making of these orders;
b.The Mother shall hold the sum of AUD $50,000 in Trust for Father and Paternal Grandmother to be used to meet the cost of their travel to the United Kingdom for a period of 3 years following the making of these Orders for the purpose of spending time with [the child];
c.The child shall spend time with the Father in the United Kingdom for such periods as may be agreed between the parties in writing and in default for periods not exceeding 10 weeks per calendar year in total.
d.In the event that the Father (or Paternal Grandmother) visit the United Kingdom, the Mother shall arrange accommodation to be provided in the residence of Maternal Grandparents or Maternal Siblings without charge for up to a total of 10 weeks per calendar year.
e.The Mother and [the child] shall visit Australia at the Mother's expense once every three years commencing in 2017 for not less than three weeks with the primary purpose of [the child] spending time with the Father and his extended family.
f.That the Mother is to facilitate other paternal family members visiting [the child] in the United Kingdom as agreed.
g.That the Mother shall inform the father in a timely manner of any parenting decisions relating to future choice of nursery, school and/or medical care provision;
h.The Mother shall send, on approximately a monthly basis, photo and artwork packages to the father and shall keep the Father informed about the achievements
i.and activities of [the child], either by email or post, depending on the contents;
j.The Father to be informed of any significant changes in [the child's] welfare or development as when practical, and immediately if they are of a serious nature;
k.The Father and [the child] shall communicate via Skype twice a week being, at such times to be arranged as between the parties having regard to summer & winter time differences in the United Kingdom and Australia.
l.The parties shall arrange additional Skype sessions for special occasions, including birthdays, Christmas and significant events;
m.The Mother shall ensure that Skype facilities available within her home, and/or on a mobile device within 2 weeks of returning to the United Kingdom and thereafter facilitate [the child] speaking with her father by Skype.
Following the expiration of 3 years from the date of these Orders all funds held on trust, if any, by the Mother shall be released to her.
That the Respondent Father pay the Applicant Mother's costs of and incidental to these proceedings.
The Father
That the Application filed 12 July 2013 (as amended) be and is hereby dismissed.
That the parties have equal shared parental responsibility for all decisions concerning the child [S] born … 2012 ("[the child]").
That [the child] shall spend time with her Father until she attains the age of 3 years as follows:
(a)from 8.30 am until 5.30 pm during the winter months on Saturday, changeover to occur at the residence of the Mother;
(b)the period referred to in Order 3(a) herein shall be extended to 7.00 pm during daylight savings months;
(c)for one half day on each Wednesday from 8.30 am until 12 noon on that day, changeover to occur at the residence of the Mother; and
(d)for two days in each week being Monday and Thursday from 3.00 pm, when [the child] shall be collected from her pre-school until 5.45 pm at the residence of the Mother.
That upon [the child] attaining the age of 3 years shall spend time with the Father on a two week basis as follows:
4.1In week 1 and each alternate weekend thereafter from 3.00 pm Friday until 7.00 pm Sunday;
4.2In week 2 and in alternate weeks thereafter on Monday, Wednesday and Thursday from 3.00pm to 6.30pm..
That upon [the child] attaining the age of 5 years shall spend time with the Father and the Mother on a week about basis.
That [the child] shall spend time with the parents on her birthday on an alternating basis such that she shall spend her birthday in years ending in an even number with her Mother and in years ending in an odd number with her Father, such periods to commence at 9.00 am and conclude at 5.00 pm.
That [the child] shall spend Christmas with her parents as follows:
(a)in years ending in an odd number with the Father from 5.00 pm Christmas Eve until 5.00 pm Christmas Day, and in years ending in an even number from 5.00 pm Christmas Day until 5.00 pm Boxing Day; and
(b)in years ending in an even number with the Mother from 5.00 pm Christmas Eve until 5.00 pm Christmas Day, and in years ending in an odd number from 5.00 pm Christmas Day until 5.00 pm Boxing Day.
That the mother be permitted to travel to the United Kingdom twice annually with [the child] for periods no greater than 4 weeks upon the mother giving the father 2 months prior written notice of her intention to so travel and providing copies of return air tickets and particulars of where she will be residing with phone contact details.
In the alternative and if the mother is permitted to relocate [the child's] residence to the UK:
That the father shall provide to the mother four weeks written notice of his intention to travel to the UK for the purpose of spending time with [the child].
That up to [the child's] fifth birthday the father shall spend time with [the child] in the UK on each occasion he travels there as follows:
a.In a seven day cycle - Three full days of the father's choice from 8.30am to 6.30pm and three half days from either 8.30am until 12pm or from 2.30pm until 6.30pm and the mother shall be given 2 weeks notice of the days the father intends to spend with [the child];
b.In the second week and any subsequent weeks the father is in London the father shall spend time with [the child] for one overnight visit in addition to the times in a. above once she has attained the age of three years;
c.The above orders are for a maximum period of twelve weeks in any calendar year.
d.Any time greater that twelve weeks the father to spend time with [the child] for two full days and two half days per week including one overnight stay after [the child] has attained the age of three years.
That the Mother and [the child] shall visit Australia for a minimum of three weeks each year starting 2015 at her expense in respect of travel and the cost of accommodation in Australia shall be shared by the Mother and Father and during such times [the child] shall spend two days per week with the mother on average provided the mother remains in Australia..
That [the child] can travel as an unaccompanied minor or when she attains the age of twelve years whichever is the earlier she shall visit Australia twice a year during school holidays for a minimum period of a total of six weeks in a calendar year.
That in respect of order 12 the mother to bear the cost of [the child's] flights and the father shall bear all of [the child's] expenses in Australia.
That once [the child] attains the age of five years the father shall time with [the child] on his visits to the UK as follows:
a.During school term. Each weekend from Friday 3.30_pm until Sunday 7pm. And three afternoons from after school until 7pm to be decided upon by the father.
b.That during school holidays the father be permitted to take [the child] on holiday and spend one week away with her during any visit however not in the first week of his visit unless agreed by both parties-,
c.That during school holidays and once [the child] has attained the age of eight years the father be permitted to take [the child] away on holiday for periods of two weeks during any visit;
d.That during school holidays and once [the child] attains the age of twelve years the father shall be permitted to take [the child] on holiday for a period of three weeks in any visit;
e.That the mother shall be given 2 weeks notice of the days the father intends to spend with [the child];
f.That in the event that the father is in London at any exceeding 12 weeks he shall spend time with [the child] on a two weekly cycle being three half days in the first week and from 3.30pm on Friday to 7.00pm Sunday.
Pick up and drop off to be arranged between the parents but no further than fifteen minutes from the father's place of residence while in London or otherwise agreed to by the parents;
That for the UK Christmas school holidays the mother shall bring [the child] to Australia in alternate years and the provisions in respect to cost and time with the mother in order 11 shall apply.
That to facilitate the time [the child] spends with the father the mother shall provide the father with [the child's] travel itinerary one month prior to each period referred to in order 13 and the costs of the child's travel shall be paid for by the mother.
That the mother pay the sum of $50 000 into an interest bearing account in Australia the names of the parties with both signatures required to operate the account to be used for the purpose of travel for the father and the paternal grandmother to travel to the UK for the purpose of them spending time with [the child] and if the father relocates to the UK then any balance in the account at that time shall revert to the mother.
Further and in the alternative and if the mother is permitted to relocate [the child's] residence to the UK and the father also relocates to the UK at a future time:
In the event that the father relocates to the UK then the orders in 2 to 7 shall apply.
The Independent Child Lawyer
Discharge all previous parenting orders with respect to the child [S] born … 2012 (“[the child]”).
Living arrangements
That [the child] live with her mother, [MS MILFORD] ("the mother").
That the mother be permitted to relocate [the child’s] place of residence to London in United Kingdom (“UK”).
“Time with” arrangements
That [the child] spend time with her father, [MR MANSELL] ("the father") as follows: Until the mother and [the child] relocate to the UK:
a)On each Monday and Thursday (or such other days as may be agreed between the parents) between 3 and 6pm, with the father to collect [the child] from [C] Daycare and return [the child] to the mother's home; and
b)On each Saturday between 8.30am and 6pm, with the father to collect [the child] from, and return her to, the mother's home.
After the mother and [the child] relocate to the UK and in the event that the father does not reside in the UK
c)Until [the child] attains the age of 3 years, for periods of not less than 14 days, and not more than 21 days, to be implemented as follows, unless otherwise agreed:
i)Day 1: between 8.30 am and 12 midday;
ii)Day 2: between 8.30 am and 2 pm;
iii)Day 3: between 8.30 am and 4 pm;
iv)Thereafter, on each day between 8.30 am and 6 pm, save that [the child] shall remain in her mother's care on one day in every 7; and failing agreement that shall be the 7th, 14th and 21st days of the "time with" regime specified in this order.
d)Thereafter, until [the child] attains the age of 4 years, for periods of not less than 14 days and not more than 21 days, to be implemented as follows, unless otherwise agreed:
i)Day 1: between 8.30 am and 12 midday;
ii)Day 2: between 8.30 am and 2 pm;
iii)Day 3: between 8.30 am and 4 pm;
iv)Days 4, 5, and 6: on each day between 8.30 am and 6 pm;
v)Day 7: no "time with" period;
vi)Days 8 to 9: from 8.30 am on day 8, overnight until 8.30 am on day 9;
vii)Days 10 to 11: from 8.30 am on day 10, overnight until 8.30 am on day 11;
viii)Days 12 to 13: from 8.30 am on day 12, overnight until 12 midday on day 13;
ix)Day 14: no "time with" period;
x)Days 15 to 16: from 8.30 am on day 15, overnight until 12 midday on day 16;
xi)Days 17 to 18: from 8.30 am on day 17, overnight until 4 pm on day 18;
xii)Days 19 to 20: from 8.30 am on day 19, overnight until 4 pm on day 20.
e)Thereafter, until [the child] commences school in September 2017, for periods of not less than 14 days and not more than 21 days, to be implemented as follows, unless otherwise agreed:
i)Day 1: between 8.30 am and 2 pm;
ii)Day 2: between 8.30 am and 4 pm;
iii)Days 3, 4, and 5: on each day between 8.30 am and 6 pm;
iv)Days 6 to 7: from 8.30 am on day 6 until 12 midday on day 7;
v)Day 8: no "time with" period;
vi)Days 9 to 10: from 8.30 am on day 9 until 4 pm on day 10;
vii)Days 11 to 12: from 8.30 am on day 11 until 4 pm on day 12;
viii)Days 13 to 15: from 8.30 am on day 13 until 4 pm on day 15;
ix)Day 16: no "time with" period;
x)Days 17 to 20: from 8.30 am on day 17 until 4 pm on day 20.
f)Such periods of time shall occur:
i)In Sydney Australia, on one occasion each year;
ii)Otherwise, in London, in the United Kingdom.
g)After [the child] has commenced school in September 2017:
i)For a period of not less than 10 days in [the child's] Easter and Christmas school holiday periods, such time to occur in the UK unless otherwise agreed;
ii)For a period of not less than 14 days in [the child's] summer holidays each year, such time to occur in Sydney, Australia unless otherwise agreed;
iii)At other times when the father is present in London, including overnight time, provided that the father ensures that [the child] continues to attend school and prearranged extra-curricular activities when she is spending time with him.
In order to facilitate [the child's] time with her father pursuant to Orders 4(c) to 4(g):
a)The father shall give the mother no less than 21 days' notice of his intention to spend time with [the child] in London, including:
i)Dates of arrival and departure;
ii)His proposed accommodation including address and telephone contact number.
b)The mother shall place the sum of AUD$50,000 in a Trust account to be used for the purposes of payment of the father's airfare costs to the UK up to two times per year; and
c)When the father visits the UK for the purpose of visiting [the child] pursuant to these orders, the mother shall arrange for accommodation to be provided to him by her siblings, or such other persons as may be agreed without charge for up to a total of 12 weeks per calendar year.
d)The mother shall be responsible for ensuring that [the child] travels to Sydney once each year for a minimum duration of 15 days and the mother shall be solely responsible for all costs associated with [the child's] and the mother's travel to Australia.
e)The mother shall give the father no less than 35 days' notice of her intention to travel to Australia so that [the child] can spend time with her father, including:
i)Dates of arrival and departure;
ii)Her proposed accommodation including address and telephone contact number.
f)Unless otherwise agreed, changeovers shall occur:
i)In London, at the mother's home or at [the child's] nursery or pre-school;
ii)In Sydney, the mother will deliver [the child] to the father's home at the commencement of her time with him; and the father will return [the child] to the mother's accommodation at the conclusion of [the child's] time with him.
Communication
That [the child] communicate with her father, [MR MANSELL] ("the father") as follows:
a)By Skype or if Skype is not available, telephone, on no less than 2 occasions per week and both parents shall ensure that such communication occurs on special occasions including Christmas Day, Father's Day, [the child's] birthday, and the father's birthday.
b)The father may communicate with [the child] by sending to her letters, cards, photographs, videos and gifts;
c)The mother shall do all acts and things necessary to ensure that [the child] receives all letters, cards, photographs, videos and gifts sent to her by the father and the mother shall assist and / or encourage [the child] to read such communications.
d)The mother do all acts and things necessary to ensure that any birthday, Christmas or other gifts sent or provided to [the child] by the father are received by [the child] and the mother shall encourage [the child] to open such gifts and acknowledge receipt of them to the father.
The mother shall facilitate any reasonable request made by [the child] for telephone, written or Skype communication with the father.
The mother shall send to the father, on a no less than monthly basis, photo and artwork packages to the father; and she shall keep the father informed about [the child’s] achievements and activities of [the child], either by email or post, depending on the contents.
Parental responsibility
Pursuant to section 61C of the Family Law Act, each of [the child's] parents has parental responsibility for her.
Prior to implementing any decision in relation to [the child's] primary or secondary schooling, the mother shall:
a)contact the father; and
b)ascertain his views in relation to the decision, and
c)give his views proper consideration.
The mother shall at all times ensure that the father is provided with up-to-date contact details of:
a)any doctor, psychologist, counsellor, therapist or allied health professional that [the child] may consult; and
b)any school or learning facility (including any nursery) which [the child] may attend.
The mother shall at all times ensure that:
a)Any school which [the child] may attend; and
b)Any doctor, psychologist, counsellor, therapist or allied health professional is authorised to provide information to the father about [the child's] progress and development.
The mother shall ensure that the father is provided with:
a)a copy of [the child's] school reports as and when they are issued; and
b)copies of any medical or other reports related to [the child's] physical or mental health; and
c)a copy of [the child's] school photograph each year.
Facilitation
That the father and the mother keep one other informed of their postal, Skype and email addresses ("contact details") at all times and notify the other in writing no later than seven days prior to any proposed change of contact details of their new contact details.
That the mother shall ensure at all times that [the child] has up-to-date details of the father's contact details, and that such details are kept in an accessible place at the mother's home.
That both parents do all acts and things necessary to either:
a)register these orders in the UK so that they are enforceable in that country; or
b)have orders made in substantially identical terms to these orders (with only such amendment as may be necessary to comply with UK law) in or by a competent Court exercising family law jurisdiction in the UK,
AND any costs associated with compliance with this order shall be borne by the mother.
ICL costs
That the mother and the father shall each pay the sum of:
a)$3,900.00 to Legal Aid NSW by way of contribution to the costs of the Independent Children's Lawyer; and
b)$1,210.00 to Dr [M], in respect of his attendance at Court for cross-examination,
within 30 days (or such further time as may be negotiated with Legal Aid NSW) of the date of this Order.
I certify that the preceding two hundred and sixty-five (265) paragraphs and Annexure A are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 13 June 2014.
Associate:
Date: 13 June 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Remedies
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