Milligan & Shaw
[2022] FedCFamC1F 176
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Milligan & Shaw [2022] FedCFamC1F 176
File number(s): MLC 12675 of 2018 Judgment of: HARTNETT J Date of judgment: 23 March 2022 Catchwords: FAMILY LAW – PARENTING – international relocation – where the mother seeks to relocate to Country Z with the child – where the child’s primary attachment is to the mother – where the child lives with the mother in close geographical proximity to the father – where the child currently spends time, including overnight time, with the father – where the child is only four years and ten months – where the parties have resided in Australia for approximately eleven years – where the child will not have a meaningful relationship with the father if the child is living in Country Z – where the relocation application is dismissed – where the child is permitted to travel with the mother to Country Z for 8 weeks each year – where the child will spend significant and substantial time with the father – where the parents will have equal shared parental responsibility. Legislation: Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 61DA
Cases cited: Adamson & Adamson (2014) FLC 93-622
AMS v AIF (199) 199 CLR 160
Bell & Nahos [2016] FamCAFC 244
Bolitho v Cohen (2005) FLC 93-224
Mulvany & Lane (2009) FLC 93-404
U v U (2002) 211 CLR 238
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Wilburn & Wilburn (2020) FLC 93-979
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 106 Date of last submissions: 22 October 2021 Date of hearing: 20-21 May 2021, 7 July 2021, 27 August 2021 and 22 October 2021 Place: Melbourne Counsel for the Applicant: Mr Arnold Solicitor for the Applicant: Armstrong Collins & Delacy The Respondent: Litigant in Person ORDERS
MLC 12675 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MILLIGAN
ApplicantAND: MS SHAW
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be dismissed.
2.The Applicant father (“the father”) and the Respondent mother (“the mother”) have equal shared parental responsibility for the child X (“the child”) born 2017.
3.The child live with the mother.
4.The mother’s Application for the child to relocate to Country Z be dismissed.
5.The child spend time with and communicate with the father:
(a)in week one from 6:00 pm Friday to 6:00 pm Sunday commencing on 25 March 2022;
(b)in each second week from 5:00 pm Tuesday to 8:00 am Thursday commencing on 29 March 2022;
(c)the child spend time with and communicate with the father in the months of November 2022 and January 2023 (but prior to 15 January 2023) for a period of 3 consecutive days at the election of the father as notified to the mother in writing upon at least 28 days notice;
(d)for not more than 15 minutes by telephone, skype or other similar communication platform (“the communication platform”) at all reasonable times when the child is in the mother’s care; and
(e)as otherwise agreed between the mother and the father in writing.
6.The child spend time with and communicate with the father from the commencement of school in 2023 on a fortnightly cycle:
(a)in week 1 from the conclusion of school Wednesday (or 3:30pm on a non-school day) to the conclusion of school the following Friday (or 3:30pm on a non-school day); and
(b)in week 2 from the conclusion of school Friday (or 3:30pm on a non-school day) to the conclusion of school Monday (or 3:30pm on a non-school day).
7.Commencing in 2023, the child’s time with the father pursuant to Order 6 hereof be suspended from the conclusion of Terms 1, 2 and 3 to the commencement of Terms 2, 3 and 4 and during each short school vacation the child shall spend time with the father as follows:
(a)in 2023 from 10:00 am on the first Thursday of each short holiday until 10:00 am the following Monday.
(b)from 1 January 2024, for one half of each short school vacation being the first half in even years and the second half in odd years.
8.Commencing in 2023 the child’s time with the father pursuant to Order 6 hereof be suspend from 4:00 pm on the 24th December until 4:00 pm 3 days before the recommencement of term and during that time the child spend time with the father:
(a)in the 2023/2024 long summer vacation:
(i)from 10:00 am on 26 December 2023 to 10:00 am on 29 December 2023;
(ii)from 10:00 am on 12 January 2024 to 10:00 am on 16 January 2024;
(iii)from 10:00 am on 21 January 2024 to 10:00 am on 25 January 2024;
(b)in the 2024/2025 long summer vacation:
(i)from 10:00 am on 26 December 2024 to 10:00 am on 31 December 2024;
(ii)from 10:00 am on 9 January 2025 to 10:00 am on 16 January 2025;
(iii)from 10:00 am on 21 January 2025 to 10:00 am on 26 January 2025;
(c)commencing from the 2025/2026 long summer vacation:
(i)from 10:00 am on 26th December to 10:00 am on 28th December; and
(ii)from 10:00 am on 2nd January to 10:00 am on 16th January.
9.The child’s time with the father pursuant to Order 6 recommence at the beginning of each school term as if it had not been suspended but had continued through the school holidays.
10.Notwithstanding any other Order:
(a)The child’s time with the father is suspended:
(i)from 5:00 pm on the 24th December to 10:00 am on the 26th December each year;
(ii)on … each year (the mother’s Birthday)
(iii)From 10:00 am on 31st December to 10:00 am on 2nd January each year;
(iv)if the mother would not otherwise see the child on … (the child’s birthday) from 12 noon to 6:00 pm on … or from after school to 6:30 pm on a school day.
(v)for up to 14 days if the child’s maternal grandparents or uncle or aunt are in Australia.
(b)In addition to the child’s time with the father pursuant to these Orders the child spend time with and communicate with the father:
(i)if the child is not otherwise with the father on … from 12 noon to 6:00 pm or from after school to 6:30pm on a school day each year expressly excluding any year in which the child’s birthday is on … (the child’s birthday);
(ii)from 10am on the 26th December to 10am on the 27th December each year; and
(iii)from 9am to 5pm on … each year (the father’s birthday).
11.The time with the mother be suspended from 9:00 am on Father’s day to 9:00 am the following day.
12.The time with the father be suspended from 9:00 am on Mother’s day to 9:00 am the following day.
13.The child communicate with the mother for not more than 15 minutes by the communication platform at all reasonable times when the child is in the father’s care.
14.Each parent or their nominated Agent known to the child collect the child at the commencement of the child spending time with that parent from the home of the other parent or from any Childcare Centre, Kindergarten or school on a day when the child is in attendance.
15.The mother and the father each be at liberty to communicate with and obtain information concerning the child from any Medical Practitioner, Allied Health Service Provider, Dental or related Service Provider who is treating the child.
16.The mother and the father inform one another in writing 7 days before any change of their home address, email or phone number or as soon as practicable.
17.The parties keep each other informed as soon as practicable of any significant injury or medical condition suffered or treatment undergone by the child while she is in their respective care and the parties are each permitted to liaise directly with the child’s treating medical practitioner, dental or other health specialist in relation to the child’s health and welfare.
18.Unless otherwise agreed between the mother and the father the nominated application is the MyMob application.
19.On 14 days’ notice to the other parent each parent is at liberty to take the child interstate during the time the child is living with or spending time with that parent pursuant to these orders.
20.The father and mother, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating either of them; and
(b)discussing these proceedings, either directly or in the presence or hearing of the child and from permitting any other person to do so.
21.Notwithstanding any other provision of these Orders and subject to there being no travel bans in place which restrict entering or leaving Australia, Country Z or any transit stopover between Australia and Country Z, the mother be at liberty to travel to Country Z with the child on up to two occasions each year for a total period of absence from Australia of 8 weeks in any calendar year (“overseas travel”).
22.The overseas travel:
(a)be at the discretion of the mother in 2022;
(b)once the child starts school, be in the long summer vacation and/or include a short school vacation, together with some absence from school of no more than 2 weeks; and
(c)be as otherwise agreed between the mother and father in writing.
23.The child is permitted to travel to Country Z for a period of up to 4 weeks upon short notice to the father in the case of an emergency within the family of the mother, and the mother provide to the father those details as set out in order 25 herein as soon as practicable AND THE COURT NOTES that these 4 weeks shall form part of the 8 weeks outlined in Order 21 herein.
24.The dates and times for the overseas travel be at the discretion of the mother.
25.Not less than 21 days before overseas travel the mother provide to the father:
(a)copy return flight bookings for the mother and the child;
(b)accommodation details including addresses for the mother and the child for the duration of the overseas travel; and
(c)contact telephone numbers and/or communication platform login details for the mother and the child for the duration of the overseas travel;
(“the overseas travel details”)
26.The mother be and is hereby restrained from altering the arrangements disclosed in the overseas travel details other than as agreed with the father.
27.If the overseas travel details are changed by circumstances beyond the mother’s control the mother forthwith inform the father by text message of the change and within 7 days of her return to Australia, the mother provide an explanation and relevant source documents concerning the travel changes to the father.
28.The mother facilitate the father to communicate with the child via the communication platform each Wednesday and Saturday during the overseas travel between 9:00 am and 7:00 pm in the zone where the child is (“the communication”). The father is to give the mother notice by text message when the communication is to take place not less than 48 hours before each proposed communication.
29.The mother provide makeup time to the father after the child returns to Australia from overseas travel of a total of 7 non-consecutive or consecutive days to include 6 nights at the father’s election but excluding special occasions & holiday periods.
30.Otherwise the child spend time with the father as agreed between the mother and the father.
31.The child’s birth certificate is to be kept by the mother.
32.All extant applications be otherwise dismissed and removed from the pending cases list.
BY CONSENT
33.The father be and hereby is restrained by injunction from consuming alcohol in the 24 hours before or during any time the child is in his care.
34.The father consents to the release of the child’s passport to the mother and to the mother retaining the child’s passport.
35.The father to sign any documents necessary for the child’s passport to be renewed within 7 days of receipt of the document from the mother.
36.The father pay the child’s standard economy airfare for the overseas travel to Country Z on up to 2 occasions in each calendar year within three months of the mother providing proof to him of the amount of the airfare.
37.Pursuant to s 65DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The father agrees to pay for the child to attend childcare one day a week in 2022, one-half of the child’s 4 year old kindergarten fees in 2022 (if any), one-half of school fees and levies for the child’s attendance at an agreed state primary and/or secondary school and one-half of fees for agreed extracurricular activities in which the child is enrolled (“the additional Child Support”).
B.The father agrees that he will not seek to set off the additional Child Support and/or the child’s airfares to Country Z pursuant to these Orders against his liability to pay Child Support per Administrative Assessment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Milligan & Shaw has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
INTRODUCTION
This proceeding concerns the parties’ child X born in 2017, who is now aged 4 years and 10 months (“the child”). The proceeding commenced following the Applicant father (“the father”) filing an Initiating Application on 1 November 2018 in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia). The father sought final and interim parenting orders. The proceeding was transferred to the then Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) by order made on the 3 April 2019. The trial of the matter proceeded on 20-21 May 2021, 7 July 2021, 27 August 2021 and 22 October 2021. The mother was a litigant in person.
The father, in his Initiating Application filed 1 November 2018, sought equal shared parental responsibility, for the child to spend progressively more time with him to include overnight time, and otherwise for the child to live with the mother. The child was then aged 1 year and 5 months. The father additionally sought that the Respondent mother (“the mother”) be restrained by injunction from moving more than 10 kilometres from P Street, Suburb F, the mother’s residence, without the father’s written consent. The mother filed a Response on 11 December 2018 seeking to relocate with the child to Country Z, and sole parental responsibility of the child. Throughout the course of this proceeding the parties amended the orders they sought, however, the main issue in dispute remained, which was whether the mother could be permitted to relocate the residence of the child to Country Z and the associated time spent with arrangements which flowed from either a positive or negative answer to that question.
Aside from the mother’s relocation application, the issues remaining in dispute at the end of the trial were:
·Whether there should be an order for equal shared parental responsibility (as sought by the father) or sole parental responsibility (as sought by the mother); and
·What time the child should spend with the father.
On 21 May 2021, the hearing was adjourned part heard, and, relevantly, interim orders were made providing for the child to spend time with the father:
(a)from 10.00am on Thursday 27 May 20201 until 12noon Friday 28 May 2021 and from 10.00am on Wednesday 2 June 2021 until 10.00am on Friday 4 June 2021;
(b)from 10.00am on Tuesday 8 June 2021 to 10.00am Thursday 10 June 2021 and from 10.00am Monday 14 June 2021 to 12noon Tuesday 15 June 2021;
(c)from 10.00am on Saturday 26 June 2021 to 10.00am Monday 28 June 2021 and from 10.00am Thursday 1 July 2021 to 12noon 2 July 2021;
(d)from 10.00am on Tuesday 6 July 2021 to 10.00 8 July 2021 and from 10.00 Tuesday 13 July 2021 to 5.00pm Wednesday 14 July 2021;
(e)in the fortnightly period commencing 18 July 2021, for one period of up to 48 hours and one separated period of up to 24 hours, to be notified by the father to the mother, in writing, and at least 12 days prior to 18 July 2021 save that such periods shall not include from 5.00pm Friday 30 July 2021 to 10.00am Monday 2 August 2021;
(f)from 10.00am Saturday 7 August 2021 to 10.00am Monday 9 August 2021; and
(g)otherwise as agreed.
The matter did not proceed on the adjourned date and was further adjourned to the 27 August 2021 to enable the mother to finish her cross-examination of the Family Consultant, Ms J. Following the hearing on 27 August 2021, the final hearing was further adjourned part heard to accommodate the mother’s wish to cross-examine the father on family violence in circumstances where the mother had not done so earlier due to a misunderstanding on her part. The father did not object to that course. The court made further interim orders for the child to spend time in the same manner as provided for in the orders of 21 May 2021, plus an additional four hours in a fortnightly cycle when a period in excess of four days passed without the child seeing her father as a consequence of the operations of his then work roster.
On the final day of the hearing, being 22 October 2021, the following further interim orders were made by consent:
1.Until further order the father spend time and communicate with the child [X] born […] 2017 as follows:
a)each fortnight commencing 22 October 2021 from 6pm Friday until 6pm Sunday;
b)each fortnight commencing Monday 1 November 2021 from 6pm until 8.30 am on Tuesday morning save on 2 November 2021 when the child shall remain with the father until 12 noon in the event the father is not working;
c)on Christmas Day 2021 from 3.30 pm until Boxing Day 26 December 2021 at 6.30 pm;
d)in January 2022 for 2 weekends from Friday 5pm until Monday 9am with the father to notify the mother of such weekends by the 15 November 2021;
e)by telephone, skype or other similar communication platform at all reasonable times, the communication to be instigated by the father and such communication to not exceed 15 minutes; and
f) such other and further time as agreed between the parties in writing.
2.The father be and hereby is restrained by injunction from consuming alcohol in the 24 hours before or during any time [X] is in his care.
3.The father and mother, their servants and agents be and are hereby restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating either of them; and
b)discussing these proceedings, either directly or in the presence or hearing of [X] and from permitting any other person to do so.
4.The parties keep each other informed as soon as practicable of any significant injury or medical condition suffered or treatment undergone by [X] [sic] while she is in their respective care and the parties are each permitted to liaise directly with [X]’s treating medical practitioner, dental or other health specialist in relation to [X]’s health and welfare.
AND THE COURT NOTES:
A.That the father shall pay to the mother the sum of $600 within 28 days of this date, being one half of the bond monies provided in respect to the tenancy of the premises in which the father currently resides.
B.The mother shall co-operate with substitution of the bond holder from her to the father or his nominee.
BACKGROUND
The father was born in Australia in 1982. He is now 40 years of age. The father is a qualified tradesperson, however, due to a repetitive strain injury to his shoulder and back problems, together with the incompatibility with family life that such an occupation presented in the father’s mind, the father no longer works as a tradesperson. He is employed as a Public Servant.
The mother was born in City Q in Country Z in 1981. She is now 40 years of age. She is French-speaking and her second language is English. The mother’s English is very good. The mother has studied in Country Z and in Australia. Her family, including her parents, younger brother and older sister, reside in Country Z. The mother has permanent residency in Australia and is in receipt of single parenting payments from the Commonwealth government. She is engaged full time in the primary care of the child but envisages a return to some form of employment where her skills can be utilised.
Both parties currently live in separate rental properties in Suburb F. The father lives with his brother, Mr D and the mother, with the child.
The Mother’s Family
The mother has a younger brother and an older sister, Ms C. Ms C swore on affidavit in the proceeding on 21 August 2020. Her evidence is before the court but much of her affidavit evidence was struck out. There was no challenge to what remained.
Ms C was 41 years old at the time of trial. She has two children, R aged 3 years and S aged nearly 1 year. Ms C and the mother are close siblings who have visited each other whilst living apart in Country Z (Ms C) and Australia (the mother). They speak to each other regularly, and the mother has described to her sister the difficulties she has had raising her daughter as a single mother. There is no doubt the mother’s family in Country Z is a closely knit family who would provide support and companionship to the mother.
The maternal grandfather, Mr B, also swore an affidavit of evidence which was before the court and is unchallenged. He and the maternal grandmother had at the time of trial been married at least 42 years and remain in the same house and neighbourhood where the mother grew up. Family is very important to the grandparents and their children. The maternal grandmother travelled to Australia following the separation of the parties to support her daughter and grandchild. The mother and child’s visit to Country Z in 2019 was a very happy occasion for all of the extended maternal family and friends.
The Parties’ Relationship
The mother left her parent’s home in City Q when she was 17. She studied in City T. Thereafter, the mother commenced to travel. She first visited Australia on a working holiday visa in 2003. She was in the UK in December 2006 when she met the father. They worked together, both in hospitality. The parties’ lifestyle at that time involved a lot of alcohol consumption and partying, and both of them occasionally smoked marijuana, a habit that ceased prior to the mother’s pregnancy.
The parties’ movements after they commenced their relationship is disputed but it can be generally summarised that in 2006 or 2007 the parties moved to Australia together. The parties then subsequently moved to New Zealand in 2007 or 2008, as the mother was unable to obtain a working visa in Australia but managed to obtain one for New Zealand. It is the father’s evidence that after staying in New Zealand for a period of four to five months they moved to Country Z where they remained until 2009. It is the mother’s evidence that they returned to Australia, before moving to Country Z. In 2009, the father returned to Australia and the mother stayed in Country Z. It is the mother’s evidence, which I accept, that she went back to live with her parents “in City Q for 8 ½ months while [she] was waiting for [her] Partner visa to Australia”. In 2010 or 2011, the mother’s visa was approved. The mother then travelled to Thailand to visit a friend. She was joined by the father in Thailand, where they stayed for a time before coming to Australia with the intention of residing in Australia.
Following the parties arrival in Australia, they resided with the father’s parents in U Town before moving into a rental property in City V near the father’s place of work. In 2012, the mother completed a TAFE course. In mid-2012, the parties had moved to Suburb F for the father’s work which was nearby, and the mother’s studies which were in City W.
The child was born approximately 5 years later. At 6 months of age and with the father’s consent, the child, together with the mother, went to Country Z for a six week period. The purpose of that trip was for the mother to introduce the child to her extended family and for the mother to spend time with her parents and siblings whom she had greatly missed following the birth of the child.
At the commencement of 2018, the parties’ relationship, which had some earlier difficulties, began to deteriorate further, and by mid-2018, when the child was ten months old, the parties separated under the one roof. In mid-July 2018, the father moved out of the rental property in which the parties and the child resided. In August 2018, the mother moved out of that rental property and the father moved back in so the parties did not lose their bond monies. He has continued in his occupation of that home. The rental secured by the mother for herself and the child is within a four kilometre radius of the home occupied by the father.
Post Separation
The parties initially made some arrangements between themselves for the child to spend time with her father. Generally speaking, the father wanted more time with the child, but with such times subject to his roster hours, than the mother thought was in the child’s best interests. The child was very young and very dependent on her mother. The father instituted proceedings. On the first return date, consent orders were made for the child to spend one eight hour visit and one four visit per week with the father; for the preparation of a Family Report at the father’s expense; and for the father to undertake an anger management course and not consume alcohol in the 24 hours before or during the child’s time with him.[1]
[1] Orders of Judge Riley made 12 December 2018.
On 3 April 2019, additional orders were made by consent for the child to spend time with the father in each week until 3 May 2020, on one day from 9am to 5pm, and from 9am to 1pm on a separate day; thereafter, and from 14 May 2020, in each week for one period of 24 hours and a further period being from 9am and 1pm on an additional day. It was also ordered by consent for time to occur as agreed and otherwise on special occasions such as the child’s birthday and father’s day; for the parents to communicate via text message or MyMob about a suitable childcare centre for the child in Suburb F; restraining the father from consuming alcohol or illicit drugs twenty-four hours prior to or during the child’s time with him; for both parents to attend a parenting orders program; and the father to be assessed by Y Family Service for an assessment of whether drug and alcohol counselling would enhance his parenting capacity.
In July 2019, further orders were made by consent providing for the mother to go on a six week holiday with the child in Country Z in August and September 2019 provided the mother met the $15,000 bond ordered to be paid, with the child’s time with the father to be made up upon their return.[2] Orders were also made for the preparation of a further Family Report upon the mother and the child’s return to Australia and for the filing and serving of material for the purposes of the final hearing.[3] The mother met the conditions of the bond albeit that caused her some financial hardship. The Covid-19 pandemic in 2020 and 2021 prevented any possibility of further travel to Country Z for the child and the mother.
[2] Orders of a Registrar made 23 July 2019.
[3] Orders of Justice Hartnett made 6 April 2020
The mother also sought that the father attend drug and alcohol counselling very early in the proceeding and continued to seek such order at trial without the necessary evidence to support the making of such an order at this time. On 12 December 2018, orders were made for the father to be assessed as to the appropriateness of such counselling. The father attended four sessions with family counsellor Ms K on 7 June 2019, 19 June 2019, 5 July 2019 and 15 July 2019. The findings of that assessment were that the father did not present with any current problem with alcohol and/or drug use. I am not satisfied that such an order is required in the factual circumstances of this case, as detailed hereafter, in particular, as the facts present beyond separation.
MATERIAL RELIED UPON
The father relied upon the following documents:
(a)Amended Initiating Application filed 22 April 2021;
(b)trial affidavit filed 22 April 2021;
(c)affidavit of Mr E filed 22 April 2021;
(d)Family Report by Ms J dated 25 August 2020; and
(e)Notice of Risk filed by the father on 1 November 2018.
The mother relied upon the following documents:
(a)Amended Response filed 12 May 2021;
(b)trial affidavit filed on 12 May 2021;
(c)affidavit of Ms C filed 27 August 2020;
(d)affidavit of Mr B filed 27 August 2020;
(e)Notice of Risk filed 11 December 2018; and
(f)subpoenas of Ms L, Ms M and Ms N.
Both parties sought to rely on the Family Report of Family Consultant Mr H filed 29 March 2019.
PROPOSALS OF THE PARTIES
At the commencement of the trial, the father no longer sought an injunction restraining the mother from moving the residence of the child more than 20 kilometres from P Street, Suburb F without his written consent. In addition, during the course of the trial, the father changed his proposals as to the child’s time spent with him as result of his changing employment. This change meant the father was employed on a more usual weekly basis of 5 days a week from 9:00 am to 5:00 pm with him being required to work every third weekend as part of his 5 employment days in that week. This change away from a roster work schedule was significant in that it enabled the child to spend time with him on a more regular and certain basis, and provided the mother with a greater ability to make arrangements for herself and the child in the context of the certainty of times in which the father would be available to care for the child.
The father proposed that the child spend time with him as follows:
(1)from 25 October 2021 until the child commences school in 2023 in two blocks of 48 hours each fortnight commencing at 10:00 am with one of those blocks to be on a weekend from 10:00 am Saturday to 10:00 am Monday. At trial the father agreed to this weekend period being from 6:00 pm Friday to 6:00 pm Sunday as preferred by the mother.
(2)then from the commencement of school in 2023 on a fortnightly cycle:
(a)in week 1 from the conclusion of school Wednesday to the conclusion of school the following Friday; and
(b)in week 2 from the conclusion of school Friday to the conclusion of school Monday.
(3)for not more than 15 minutes by telephone, skype or other similar communication platform each Monday and Thursday between 6:00 pm and 6:30 pm; and
(4)for the mother to travel to Country Z with the child for up to two occasions for a total of 8 weeks in any calendar year with the mother to facilitate communication during such travel.
He otherwise sought orders in accordance with his Amended Initiating Application filed 22 April 2021 as follows, that:
(1)the parties share equal parental responsibility;
(2)the child otherwise live with the mother;
(3)the child spend time with the father during the school holidays and on father’s day, Christmas, birthdays;
(4)the child communicate with the father each Thursday and Monday between 6:00 pm and 6:30pm by telephone or other electronic communication and each third day communicate with the mother when in the father’s care; and
(5)for the child’s time with him to be suspended for up to 14 days if the maternal grandparents are in Australia to enable the child substantial time with the mother’s family.
At trial the mother sought sole parental responsibility for the child; that the child live with her; and that the child be permitted to relocate with the mother to Country Z. In the event the mother was unsuccessful in her relocation application the mother agreed to orders that the child spend time with the father as provided for in the consent orders of 22 October 2021 (as set out in paragraph 6 above). In addition she proposed that the child spend time with the father and mother for Father’s Day and Mother’s Day respectively; provided specific dates and times for the child to spend holiday time with the father commencing from 2023 that equated to half term holidays and less than half of the long school holidays; and for the child to travel with her to Country Z for six weeks each year but not in the child’s Christmas time with the father.
The mother also sought that the child receive a French education and receive counselling support if the mother deemed it appropriate. There was no evidence before the court to establish that such an order should be made at this time. Further, if it is in the child’s best interests at some time in the future, that she attend upon a counsellor, that will be a matter to be determined by both of the child’s parents in the exercise of their shared parental responsibility. She also proposed that the father pay half of the child’s childcare and school fees, but I note that the mother sought no necessary departure orders pursuant to the Child Support (Assessment) Act 1989 (Cth).
LEGAL PRINCIPLES
Proceedings which involve relocation are to be determined in the same manner in which all parenting proceedings are determined.[4] That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (‘the Act’) to determine what is in the best interests of the child. As was stated by the Full Court of the Family Court of Australia (“Full Court”) in Zahawi & Rayne [2016] FamCAFC 90:
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[4] U v U (2002) 211 CLR 238.
While neither party is required to establish “compelling reasons” for relocating, [5] it is also the case that the Court is not bound by either parties proposals.[6] The Full Court in Bolitho v Cohen (2005) FLC 93-224 said as follows:
85.The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter parties litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J [in U v U]. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.[7]
[5] AMS v AIF (1999) 199 CLR 160, 191. Affirmed in Adamson & Adamson (2014) FLC 93-622, [65]-[66].
[6] U v U (2002) 211 CLR 238.
[7] Bolitho v Cohen (2005) FLC 93-224, p. 79,701.
Further, in the recent dismissal of an appeal against an injunction restraining a party from relocating the residence of the children to a different suburb in Melbourne in circumstances where the father resided more than 90 minutes away, the Full Court stated that:[8]
41.[H]is Honour determined that the proposed move was not in the best interests of the children, and in the formulation by the High Court in U v U (2002) 211 CLR 238 of where the parental right to freedom of movement sits, it was said as follows (at [89]):
…whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent. …
42. Two further points…are first, given the evidence of the wife that she would not be “absolutely miserable” if not permitted to relocate the children, it would be an unacceptable elevation of the concept of freedom of movement to find his Honour erred in not deferring to the wife’s express preference. Secondly, his Honour was required to balance the relevant factors in circumstances where the wife’s express reasons for wishing to relocate were not supported by the evidence.
[8] Wilburn & Wilburn (2020) FLC 93-979 [41] – [42].
Relevant statutory provisions
Section 60CA of the Act provides that:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Pursuant to s 60CC(1) of the Act:-
…in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Those primary considerations contained in s 60CC(2) of the Act and additional considerations contained in s 60CC(3) of the Act are set out hereafter.
Section 60CC is contained within Pt VII of the Act. The objects of Pt VII of the Act are set out in s 60B(1) of the Act, and are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects of Pt VII of the Act are set out in s 60B(2) of the Act, and, unless it would not be in a child’s best interests, are:
(a)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;
(b)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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act requires the Court to 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. If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
The presumption set out in s 61DA of the Act does not apply where there are reasonable grounds to believe that a parent has abused a child the subject of the proceedings or another child of that parent’s singular household at the time or engaged in family violence, (s 61DA(2)). Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
“Family violence” is defined in section 4AB of the Act and is as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
Pursuant to ss 60CC(2) and 60CC(2A) of the Act:-
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
Whilst the additional considerations as set out in s 60CC(3) must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[9]
[9] Mulvany & Lane (2009) FLC 93-404 at [77].
I shall however make reference to each consideration as the mother is a litigant in person and it may assist her in understanding my reasoning. My findings in relation to those of the considerations that are central to the facts of this particular matter, are as set out in my consideration of those matters legislatively required to be considered and otherwise exist throughout these reasons.
The parties agree that the child should live with the mother. The husband consents to such an order and has never sought to challenge that living arrangement, nor does he do so now.
THE EVIDENCE
The standard of proof in this proceeding is on the balance of probabilities.[10] While it is not necessary to comment upon the entirety of the evidence put before me, every piece of evidence relied upon by the parties has been read and carefully considered by me.[11] Each of the parties had the opportunity to, and did, cross-examine the other. Both parties were generally reliable witnesses and both have considerable parental insight. The affidavit evidence of Ms C and Mr B was not challenged by the father once objections to that evidence had been determined which resulted in considerable strike out of that material.
[10] Evidence Act 1995 (Cth) s 140.
[11] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
The mother made an allegation that Mr E, the paternal grandfather, made the child sit on his lap and “his hand was always between her legs”. The mother did not cross-examine the paternal grandfather in respect of this allegation and the mother appeared to abandon the issue in particular in terms of the child’s time with the grandfather being required to be supervised as was evidenced by earlier orders made by consent. Nevertheless, she sought an order for time between the child and the paternal grandfather to be supervised in her case summary document.
The evidence of the paternal grandfather was challenged in other respects by the mother. The paternal grandfather was a credible witness. I accept that he has not acted in any inappropriate way toward the child, nor has he failed to accept the direction of the mother when caring for the child, as alleged by the mother and denied by both the father and paternal grandfather, and has been, and continues to be, a loving and supportive grandfather with whom the child has a warm relationship. I accept the paternal grandfather’s evidence and I am satisfied, as is the father’s case, that the child “has a loving relationship with her paternal grandparents, uncles and aunties”.
The expert evidence before the Court is as set out hereafter.
The Parties’ Evidence
It was the mother’s case that the father was emotionally and psychological abusive toward her during the relationship, and that she experiences ongoing stress whenever she has to communicate with him. The mother provided multiple examples, albeit the majority of them being prior to the child’s birth, wherein she alleged the father was intoxicated and “aggressive”. One incident which I accept occurred, as admitted by the father, was a verbal dispute which arose between the father and a good friend of his, at the parties’ home, on New Year’s Eve 2015, some year and a half before the birth of the child. The father became angered, was probably drunk, and walked from outside the parties home, where the argument had occurred, to the inside of the home. He then punched a hole in the wall before proceeding to another room in the home, where he commenced to look for his credit card. In the process, he up-ended various objects in the room and created chaos in the room. He says of this aggressive outburst that “it was a silly move” and “one that I still regret”. The father left the home that evening and did not return till a day or some days later. He and the mother continued their relationship and the mother became pregnant in the following year, an event which was of great joy to the parties.
Nevertheless, the mother was justifiably concerned about this behaviour of the father, which I accept was frightening for her. It was an episode of family violence. At that time in their lives, both parties drank alcohol fairly regularly and both smoked marijuana occasionally. The mother however drank considerably less than the father and considered the father drank too much. Certainly the father agreed that he did so on that occasion. I find that there were no further episodes of family violence perpetrated by the father and in particular none following the child’s birth.
The father did drink a lot, on his own evidence, whilst working in the busy social world of hospitality. The hours were long, the stress great and the evening time following work was often one in which considerable alcohol was drunk, initially in their relationship, by both parties. The father’s move to employment in the public service was an end to that lifestyle as it was for the mother when she ceased her employment in hospitality, and took up other employment and her studies.
The mother however gave further evidence as to incidents which she alleged occurred after the child’s birth. One such alleged incident, when the child was a few months old, occurred on 2 July 2017. It was the mother’s evidence that she observed the father to be “holding X, intoxicated and dancing with her with loud music” upon the mother’s return to the home after being out at work one evening. The mother had left the child in the father’s care. The father denied the allegation made by the mother. It was the father’s evidence that the child would not settle and had “been awake the whole night”, and that he was appropriately caring for the child when the mother returned. I prefer the evidence of the father as to this matter. He was an honest witness who had a clear recall of the event. The parties’ relationship had some strains at that time, and the mother viewed the father in an increasingly critical light. The father had a job that required him to be available at odd hours and required him to be sober and not drug affected. He was dedicated to his job and importantly, dedicated in his care of the child as I find.
The mother further relied upon an incident which occurred, at the home of the father’s parents. There was a celebration of the birthday of one of the father’s brother. The father drank too much, and the next morning, the parties having slept over at the home, the father was, as described by the mother, “very drunk and unable to walk straight with a drink in his hand” and “tried to play with [the child]”. I accept the mother’s account and note that the paternal grandfather had the care of the child and that no risk was present to the child. The child was not upset nor neglected. The mother described this as “controlling behaviour” on the part of the father. The father agreed that he was intoxicated on that occasion, denied that he was “controlling” of the mother, and stated that he had not been to bed. The paternal grandfather, who was present, directed the father to go to bed. The father did so. The father was not aggressive, nor controlling. It was unfortunate for the mother, it offended and hurt her, and no doubt concerned her to see the father intoxicated on this morning. He was not, however, abusive to her, or of her, or anyone else.
It is an agreed fact that the parties’ relationship deteriorated further following the birth of the child and the parties ultimately separated. Their communication was poor. The mother’s evidence was that the father did not provide sufficient notice and clarity about when the child would spend time with him following separation. The father was restricted in his availability by virtue of his then shift work employment. The mother found it difficult to accommodate the father’s changing fortnightly cycle, which was operative until the trial was almost concluded. The mother also considered the overnight time then being sought by the father was not in the child’s best interests. The mother did support the father’s time with the child, both before and after litigation commenced, but she proposed times significantly less than those sought by the father. To his credit, the father ultimately agreed that overnight time for the child with him should not continue to occur (as it had) before the child was 3 years old as recommended by Mr H, Family Consultant, whom the parties had engaged.
The mother complained about the father’s conduct in changing the return time of the child to her care after an overnight visit, from 9:00 am to 10:00 am, without consultation with her. The mother was informed as to what the father intended to do by text message. The father agreed he had unilaterally changed the time, but considered that the then orders were formulated such that what times and what days the child would spend with him, were flexible, in consideration of his changing work roster. The change in time had come about because he “felt the 9 o’clock pickup time after [the child] spending the night was rushed” and limited the time he had in the morning to organise breakfast for the child. A start time of 10:00 am also enabled the child some play time before returning to the mother. The mother did not cavil with the obvious benefit to the child in the father’s proposal.
The mother also tendered text messages between the parties, which she claimed showed the father changing or setting the spend time arrangements without considering her view. It is these difficulties the mother has in communicating with the father which she claims makes her “very nervous” and causes her “stress”. This, along with what the mother describes as “controlling behaviour” by the father, which she says is evidenced by the changing in changeover times, is the basis on which the mother seeks sole parental responsibility.
It was the father’s evidence that despite these failures in communication, which last occurred at least six months before the commencement of the trial, he was of the opinion that the parties’ communication “has improved over time” as evidenced by the fact that the parties are able to successfully organise changes to the spend time arrangements and changeover, as needed, and otherwise by their ability to agree further on more significant matters concerning the child and the promotion of the best interests of the child. One such example was the parties’ agreement which enabled the mother and the child to go on a camping trip during what would have been the child’s time with the father.
I find the parties’ communication as to the child’s needs and other child-related matters in fact proceeds in a practical way, with the parties using the MyMob app or text message, and both being child focused. Their communication has improved as the child has become older and the parties’ conflict with each other has abated. The mother made clear at trial that she did not intend to remove the child from Australia until she was at least 5 years of age, as was preferred by Mr H. This was a child-focused response on her part. As the time since separation has passed, she has understood to a greater extent the importance to the child of the ongoing establishment of her relationship with the father.
Whilst it is not relevant going forward, the mother raised the father’s work roster on numerous occasions during the course of the trial. It was her view that it did not provide “stability” for the child, and prevented a routine from occurring, such as regularly attending childcare. Routine and stability is however different for different children and families, especially for children who have parents who are separated, with one parent working to provide financial support for a child, but not in the context of regular hours of work. It was the father’s evidence that historically he had to organise the child’s time with him around his work roster, and he asserted that the mother’s complaint, that the child was absent from childcare on occasion, was unjustified on the basis that it would have been unreasonable for him to send the child to childcare in the one twenty four hour period that he had with the child, and in which he was available to take care of the child. I agree with the father’s stated position. The father nonetheless undertook to the mother that the child would attend four year old kindergarten, prior to the commencement of school, and regardless of his shift work hours.
As the trial progressed, this source of conflict between the parties disappeared. The matter became a non-issue, as the father changed his employment position within the public service. Whilst he had worked on a roster that changed fortnightly, his new position requires him to work 9:00 am to 5:00 pm, five days a week, on a three week cycle, which requires the father to work on a Saturday and Sunday (as two of those days) in one week. I accept, as submitted by counsel for the father, that the father will be able to maintain regular days and times with the child in his new position, and I find that change will lessen the need for the parties to communicate about this issue, and eradicate for them what has been a difficult communication issue at times and a difficult arrangement for the mother to accommodate. I acknowledge that she nevertheless worked to accommodate the father’s roster in her proper advancement of the best interests of the child.
The Family Reports
The evidence of Mr H
Family Consultant Mr H was not cross-examined by either party on the contents of his Family Report filed 24 March 2019 which is in evidence before the court. That evidence is accepted by the court. The benefit of Mr H’s evidence was that he had the opportunity to meet with the child and observe the child interacting with both parents. It was his evidence that, at that time, the parties’ relationship was “volatile and unstable”, and that prior to settling in Australia the parties’ lifestyle was “peripatetic”. Despite that, he was of the view that the child had a good relationship with both the father and the mother, and would benefit from having a relationship with each of them.
Mr H observed that:
[Mr Milligan] and [Ms Shaw] present as loving and caring parents who cannot agree on two major issues impacting on [X]: the country where she will live and whilst in Australia, the amount of time she’s to spend with [Mr Milligan].
It is clear on his evidence, that despite the child only being 1 year and 10 months old at the time the interviews were conducted, she had a good relationship with her father and felt “comfortable in his company, responds to him, seeks him out and he is a comforting and familiar figure to her” and that with time the child’s relationship with the father would continue to develop.
Mr H stated as to the mother’s input to that outcome, the following at paragraph 43 of his report:
[Ms Shaw]’s contribution, namely good will and a belief in the importance of their child having a relationship with [Mr Milligan] should not be underestimated. That this child is developing a sound, meaningful and hopefully secure relationship with [Mr Milligan] is in part due to her openness to this occurring.
Mr H observed however, that if the mother was permitted to relocate to Country Z in the then immediate future, the father’s “relationship/bond with X is likely to be undermined, if not ended”.
The evidence of Ms J
Family Consultant, Ms J, was cross-examined by the mother as to her evidence contained in her Family Report dated 25 August 2020, such report being introduced into evidence in the proceeding. Due to Covid 19 restrictions at the time of conducting the Family Report, Ms J was unable to meet the child in person and instead held the interviews with the father and the child via Microsoft Teams, and with the mother by telephone due to technical difficulties experienced by the mother.
Whilst not in contention in the trial, in that the father did not dispute that the mother should have the primary care of the child and further expressly stated that he did not consider the mother’s health as adversely impacting her care of the child, the mother cross-examined Ms J as to the mother’s Narcolepsy type 2. It was Ms J’s oral evidence that the mother reported to her that the mother found it “hard to concentrate at times”, and that sometimes the mother “sleeps heavily in the day.” This was consistent with what Ms J noted in her report as follows:
35.[Ms Shaw] informed she has narcolepsy, which was diagnosed in 2013. She attends with a specialist every twelve months and said she will fall over when she is really tired. She said it is hard to concentrate at times and she sometimes sleeps heavily in the day. "I feel lazy but I can't really control." [Ms Shaw] said being busy and exercise helps, it is when she sits down that she can fall asleep. She said she struggles with self-esteem, stress and anxiety. She attended with a psychologist for many years but "then she stopped working. She was helping me a lot and it was a huge loss."
Ms J’s evidence was otherwise uncontested in any significant way by the mother. It was not challenged by the father.
Ms J’s evidence was insightful and well considered. It is accepted by me. Ms J acknowledged that while the father originally sought orders not suited to the child’s developmental age and needs, noting that the child had trialled periods of overnight time with the father prior to attaining the age of two (as was agreed by the parties) before the mother stopped that time, he had adjusted in his expectation of the child’s developmental progress and accordingly overnight time with the child was reintroduced more appropriately when the child turned three in May 2020. The child adapted well to this time and “will continue to benefit from living in one primary home and building a strong bond with her other parent, her father”.
The mother reported to Ms J that she had limited support in Australia despite having friendships here, attending mother’s group and engaging with likeminded people on a Facebook group who “engage in activities such as walking in the park and going to cafes”. Ms J opined as follows:
62.[Ms Shaw] is a parent, albeit a single parent, of a young child with what she describes as very limited local supports. [Ms Shaw] identified her own stress and self-esteem issues as another factor in her desire to relocate. Her motivation to return to [Country Z], where she has extensive family supports is understandable. However, the writer wonders about [Ms Shaw]’s emotional fragility and functioning and whether the same issues of low self-esteem and anxiousness may have been present prior to her having a child. If [Ms Shaw] did experience similar issues to those she has identified, that is isolation, low self-esteem and worries about her parenting, relocation to [Country Z] may temporarily alleviate these feelings but in the long term they may travel with her.
To assist the mother in managing her anxiety, Ms J recommended that the mother attend upon a psychologist.
Ms J also expressed concern that the mother, albeit she stated that she wanted the child to have a meaningful relationship with her father, may lack the capacity to encourage an ongoing relationship with her father in circumstances where the distance between the parties, should the child be permitted to reside in Country Z, would diminish the quality and time the child spent with her father.
Ms J alluded to the difficulties around using technology in circumstances where the parties resided in different countries. The mother reported that she was not particularly proficient with technology, and that it sometimes took her 30 minutes or so to be able to connect with her family in Country Z over social media. The child was reported to have a limited attention span, with the father noting that while he and the child had commenced using Face Time to communicate, the child could only focus for “about three minutes”. Ms J was of the view that these difficulties would make communication between the child and her father difficult if the child were to relocate with the mother to Country Z at this stage in her development. The father nevertheless acknowledged, that as the child “gets older,… social media time would be more doable on a general basis”.
It was Ms J’s evidence that “there’s nothing to suggest that either parent was less than optimal”,[12] and that there was also nothing to suggest from either of the parties that the then parenting arrangement was working in any way but well. Ms J stated that “regardless of the decision, losses for all are inevitable” in these circumstances.
[12] Transcript 27 August 2021, p. 6 line 10.
Ms J’s evidence in conclusion was that:
68.Both parents have and continue to provide [X] with child focused parenting, where her needs are paramount. [X] is reported to have adapted to the introduction of one overnight period commensurate with her developmental stage. The current arrangements should continue with consideration of an increase to two consecutive overnights when [X] is aged four years.
CONSIDERATION
Parental Responsibility
Section 61DA of the Act requires the Court to 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. It was the mother’s case that she should have sole parental responsibility because “of the control” the father exerts; because her communication with the father results in “conflict”, is “really stressful”; and because she was of the opinion that she could not possibly endure “another 10 years of just conflicting – constant conflict”.
As previously discussed in paragraph 59, the father is of the view that parties communication has improved. I find on the evidence that it has so improved and that the movement away from being constrained by a work roster, together with the mother’s ability to undertake travel with the child to Country Z at times as determined by her, in the context of the court’s orders, will assist their communication. I do not find on the evidence of the mother that the father is “controlling”. Nor is that allegation supported by the other evidence before the court. The mother has been quite assertive at times in her dealings with the father. He has made numerous concessions to her. He has proposed, without limit, or otherwise agreed to, an order that he not consume alcohol whilst the child is with him and nor for 24 hours prior thereto. Whilst there was evidence to support the making of such order, with a sunset clause, some years ago, it would be difficult to find that such evidence exists now though I shall make the order because it reassures the mother, and there is some history of excess alcohol consumption. The mother does not willingly compromise in all instances in which one would expect her to. Her ongoing seeking of sole parental responsibility throughout the trial was not supported by the evidence, but she steadfastly sought that control. I find it is in the child’s best interests for her parents to have equal shared parental responsibility as sought by the father.
I have already outlined in paragraphs 63-65, that the child has a good relationship with both her parents. There has been no family violence as between the parties since the birth of the child. I am not satisfied that the circumstances outlined by the mother justify an order for sole parental responsibility. The presumption of equal shared parental responsibility applies in the facts of this case and I will make orders in those terms.
Additional Considerations
Section 60CC(3)(a) any views expressed by the child
The child is four years of age. I accept as submitted by the father, and Ms J, that the child is not yet of an age where she is able to understand the impact that any relocation would have on her, or on her relationship with the father and the mother.
Section 60CC(3)(b)the nature of the relationship of the child with each of the child’s parents and other persons
Since separation the child has spent substantial and significant time with the father as is appropriate to her age and needs in accordance with court orders and mostly by agreement with the mother. The child lives with the mother who is clearly her primary carer. The mother seeks to relocate and in so doing, will remove the child from an ability to maintain a meaningful relationship with her father, in particular given her age. Both parents have a close and loving relationship with the child as does the child with them.
As previously referred to, the child has a loving relationship with her paternal grandparents and uncles and aunties. The child currently spends a significant amount of time with the father’s family, especially the father’s brother with whom he lives. The child is very close with the paternal grandfather and tends to seek out his attention when he is there. It was the paternal grandfather’s evidence that he regularly sees the child, and that when the child is with the father on a weekend, that he and the maternal grandmother will often visit. I accept that evidence. I find that these relationships will deteriorate if the child’s time with her extended paternal family is diminished.
It is the mother’s position that the father is “isolating his child and the mother” from the extended maternal family.[13] The evidence before the court however indicates that the father is supportive of the child maintaining and having a relationship with the mother’s family. Since the child was born, the father has consented to the mother taking the child to Country Z for two 6 week holidays, one in around September/October 2017 and the other in August 2019 pursuant to consent orders made 23 July 2019 following the mother filing an Application in a Case to do so. The father also accepted that if the child were to relocate to Country Z the child “would have a loving relationship with her maternal grandparents”.[14] I am not satisfied that the child would have no relationship with the maternal grandparents if she lived in Australia, especially in circumstances where it is the mother’s evidence that she and the child talk to her family via video call on social media and, as suggested by counsel for the father, the mother and the child could travel to Country Z in a holiday period/s for a substantial amount of time each year as consented to by the father. I note that the maternal grandparents “understand little English” and have presently a more limited relationship with the child whose main language is English by virtue of the parties residing in Australia. As the child matures and with encouragement from her parents to learn the French language, as I find will occur, this impediment to a further development of the relationship will lessen and disappear.
Section 60CC(3)(c)-(ca) the parents’ opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parents’ obligations to maintain the children
[13] Case outline of the mother, filed 14 May 2021, p 3.
[14] Case outline of the father, filed 14 May 2021, p. 2.
Since separation the child has lived with the mother and spent substantial time with the father. Both parents have supported the child financially and made decisions to promote the best interests of the child. I find they are loving, capable, and devoted parents with considerable insight into that which advances the child’s best interests.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
The parties separated when the child was ten months old. Following separation, the parties initially arranged between themselves when the child would spend time with the father. Since 12 December 2018, the child’s time with the father’s has occurred in accordance with court orders, with the majority of the orders being made by consent and requiring the parties to communicate to arrange for the child’s time to be spent with the father due to the father’s fortnightly changing work roster. Despite the difficulties, they managed and the child has been able to develop a meaningful relationship with her father but not one which could currently withstand the significant separation from her father that the mother’s proposal would result in.
It is not disputed by either of the parents and the court accepts that the child has a good relationship with each of them. In the first Family Report, when the child was almost 2 years old, Mr H observed, more particularly in respect of the child and her father’s interactions:
34. [X] (now 22/12) was observed on one occasion only. [Ms Shaw] brought her to the first appointment. She unclipped the belts restraining the child in her stroller and the child moved to [Mr Milligan]. She smiled at [Mr Milligan], appeared pleased to see him and readily separated from [Ms Shaw]. When later observed jointly in this Counsellor's office, [X] turned to him and sought his attention. She is a busy, active toddler who was constantly on the move. She is quite a determined child who insisted on opening a container herself. She readily accepted and ate the snacks and treats [Mr Milligan] had brought along for her. [X] was physical with [Mr Milligan], clambered and cuddled up to him. [Mr Milligan] was attentive, responsive and helped her off his seat. They looked at some books jointly that he had thoughtfully brought along. [Mr Milligan] noted [X] had a wet nappy and deftly and confidently changed it. Mr Milligan explained how [X] was saying more and more words though not putting words together as yet but suggested she was well underway and had learnt to say "No!". (Subsequently asked about her language development, [Ms Shaw] confirmed the child was making good progress however was still struggling with time concepts like "now, today and tomorrow" [sic].
The updated Family Report writer Ms J, while she did not observe the child with the parents, was of the view that the child “has two loving and capable parents who can and do offer her nurturing and different experiences”. Further, the child had successfully commenced overnight time with the father and appeared to have adjusted well to that progressively increased time.
It is agreed between the parties that if the child were to move to Country Z with the mother that the child’s time with the father would be significantly less and have an impact on the child’s relationship with the father. There is a large time difference between the cities of Melbourne and City Q. The mother’s proposal of telephone or Face Time would be limited to the father communicating with the child early in the morning for him in Australia and in the late afternoon/evening for the child in Country Z. This means of communication is likely to become less frequent as the child ages, and is attending school and extra-curricular activities.
Whether the child remains in Australia or relocates to Country Z, it is accepted by the parties that the mother will remain the child’s primary carer. What is clear is that if the child remains in Australia, she will benefit from developing a greater relationship with her father and spending regular and increased time with him, a view expressed by Ms J. I find a change in the child’s residence from Australia to Country Z, will prevent the developing of that greater relationship and be detrimental to the child’s welfare.
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
Whilst the mother’s case was that the child would be able to have a meaningful relationship with the father if she and the child were to relocate to Country Z, on the basis that the father would be able visit and communicate with the child, I find that is not the case. The father’s ability to visit the child would be limited by his financial resources and by his working commitments. Social media has the earlier described difficulties which may lessen as the child gets older, but may be impacted by English becoming the child’s second language.
Ms J expressed the difficulties as follows:
64. The decision as to whether to relocate or not is a vexing and emotional issue with no really suitable outcome for the child. The geographical distance cannot be minimised as a significant factor in this proposed relocation, with lengthy travel, high costs and once [X] commences school limited periods of time when she will be able to spend time with her father. Regardless of the decision, losses for all are inevitable. The use of technology to support a relationship whilst useful and certainly well utilised, are no substitute for an emotionally available and physical present parent, where a relationship has been established.
65. The impediments and logistical barriers to maintaining a solid relation with the left behind parent, despite the departing parent’s best intentions and beliefs that all will augur well, are likely to become more and more difficult to surmount with the passage of time. A video link between [Country Z] and Australia is not a substitute for a relationship.
I find the detriment to the child in relocating immediately to Country Z would be great. At four years, she is, as described by Ms J, at an age where she is only just beginning to develop “the capacity to hold an image or memory of her father in her heart and mind”. The child’s time with the father will be limited if she were to relocate with the mother to Country Z, and even more so when the child commences school in 2023.
The father’s capacity to travel to Country Z and meet the cost his and the child’s expense of traveling back and forth between Country Z and Australia would be considerable. While the father has indicated that he is willing to pay for the child’s airplane tickets to travel with the mother to Country Z and return, the expenses would be significantly greater for the father if he were to travel to Country Z. At trial, the father raised issues as to the practicality of travelling back and forth between Country Z and Australia in the current Covid-19 climate. Any travel restrictions and/or the additional costs of testing required to enter a country would further limit the father’s capacity to facilitate the child’s time with him in either country. The father has limited leave entitlements, and his working hours mean that his ability to take time off work for a substantial period of time is reduced.
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
As outlined throughout these reasons, I am satisfied that both parents have the capacity and are able to provide for the child’s needs including financial, physical, emotional and intellectual. Otherwise each of the parties extended families have the ability to provide for the child’s needs when with them.
Section 60CC(3)(g) the maturity, sex, lifestyle (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
The mother is from Country Z and is able to speak fluently in both French and English. It is the mother’s wish that the child be bilingual and be able to speak French and that in doing so, the child would have a more meaningful relationship with the mother’s French speaking family. It is the father’s evidence that he has encouraged the child in her learning of French in Australia and that at the time of filing his trial affidavit the child was able to count to ten in both French and English. The father, however, expressed concern about the child’s English language skills in circumstances where it was his evidence that following the mother and child’s last trip to Country Z the child “was using French words [and] not English” and that it took some weeks for her to switch back to using English. The child has a firmer grasp of English now. Additionally, the mother proposed that if she and the child were to relocate to Country Z, she would enrol the child in an English speaking school, and thereby ensure her English language skills were retained and developed.
Section 60CC(3)(h) Aboriginal culture
This consideration is not relevant to this case.
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As outlined throughout these reasons, both parents are insightful in their engagement with and support of the child and her care is their priority.
Section 60CC(3)(j) and (k) family violence
During the course of the trial the mother was granted leave to further cross-examine the father as to her allegations against him of family violence. The questions put to the father by the mother were however in relation to the father’s past work roster, and his changing of spend time with arrangements to accommodate that roster in what she claimed demonstrated “the confusion and the - the brain games playing”. There was no evidence before the court that would lead to a finding by me that the father psychologically abused the mother, as is the mother’s case.
As discussed in paragraph 51, I am satisfied that while there was an incident involving family violence, there is no evidence before the court that family violence has occurred since the child’s birth and the parties subsequent separation.
In this case there are no family violence or protective orders in place, nor have there been. While the mother alleges family violence in the form of “psychological abuse”, there is no evidence before the court such that the court would find the child is at risk in either party’s care.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
The order the court shall make may lead to further litigation as the child matures but that is not a consideration outweighing the advancement of her best interests at this time. I agree with the evidence of Ms J that this case is one where “both parents have and continue to provide [the child] with child focused parenting, where her needs are paramount” and that in such circumstances the child would benefit from maintaining a meaningful relationship with both parents. Given her age, and other matters as referred to in these reasons, that can only occur realistically if the parents reside in reasonably close geographical proximity to each other and certainly in the same country.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There were a number of unknowns and uncertainties with the mother’s relocation proposal. The mother’s evidence was that she potentially could reside with her sister in City T, approximately an hour from her parents, or with her brother or parents in City Q. It was her evidence that her father has offered her a two bedroom apartment in an apartment building that he owns, which is in a small French speaking town, but she had otherwise not made any investigations as to where the child and she would reside in the long term. The mother also did not provide the name of the school in Country Z that she proposes the child to attend, and instead provided a summary of the number of public English speaking school in City Q. It was the father’s evidence that the mother “does not seem to be confident that an application [to a public English speaking school] will be successful” and that whilst he would be supportive of the child attending an English speaking school – he does not speak French – he could not afford to send the child to a private English speaking school. It was the mother’s evidence that the cost of schooling and child care in City Q is cheaper than Australia and that she would have her family and friends to assist her. No evidence in support of that assertion was before the court and I cannot make a finding that that is the case.
The father is not eligible to work or gain permanent residency in Country Z. By contrast, the mother has the ability to gain employment within Australia, as evidenced by her ability to undertake volunteer work between 2019 and 2020, and has permanent residency. The mother is in receipt of child support payments and parenting payments from Centrelink and can continue to receive such payments in the event she delays her re-entry into the workforce. This is a significant matter in the context of the mother’s relocation application which points to the benefits of the child in remaining in Australia where both of her parents can reside and work.
CONCLUSION
I accept the evidence that the maternal family would support, generously, the mother and the child and that the mother and child would have the benefit of being able to interact with the extended maternal family. Further, although the mother has chosen to live outside Country Z for many years, in her life so far, having had a child, she now wishes for some family interaction and support. In order to achieve that however, the child would be isolated from the father. The interaction with the maternal family, as sought by the mother could nevertheless occur, albeit in a more limited way, if the mother and child could travel frequently to Country Z. I find that the child’s best interests will be advanced by allowing the mother and child to travel to Country Z with a degree of frequency that promotes those family relationships which are available to the mother and child in Country Z, and which allow the child a further opportunity to develop her French language skills and the mother to receive the support of her family.
The child remains pre-school. Her time with her father is increasing and should be further increased such that it includes regular substantial and significant time. The father does not seek an equal time regime, which the court was required to consider given the s 61DA of the Act presumption. The father acknowledges the mother’s ongoing primary care role, and the child’s young age. The mother also supports the child spending substantial and significant time with the father. The orders the court shall make take into account the parties’ position in that regard. Such orders promote the best interests of the child.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 23 March 2022
7
0