NAPIER & MALPASS

[2020] FCCA 745

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPIER & MALPASS [2020] FCCA 745

Catchwords:
FAMILY LAW – Parenting – where the mother seeks to relocate to Country A with 8 year old son – emotional and financial difficulties if she were to remain in Australia – father opposes relocation – where the child would lose the connection with his father and paternal family – where it is not in the child’s best interests to relocate to Country A.  

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60A, 60B, 60CA, 61DA, 65DAA.

Cases cited:

Goode v Goode [2006] FamCA 1346

McCall v Clark (2009) FLC 93-405

Rice v Asplund (1979) FLC 90-725

Applicant: MS NAPIER

Respondent: MR MALPASS

File Number: MLC 2552 of 2016

Judgment of: Judge Burchardt

Hearing dates: 11-13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Dandenong

Delivered on: 3 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Higgins Legal

Counsel for the Respondent: Mr Hannan

Solicitors for the Respondent: Kozarov Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The parties have equal shared parental responsibility for the child X MALPASS born in 2011 (“the child”) (to be known as X NAPIER-MALPASS born in 2011).

3. The child live with the Mother.

4. The child spend time and communicate with the Father as follows:

   (a)Each week from the conclusion of school (or 3:30pm) Thursday to 9.00am Friday, with the Respondent to collect the child from school on the Thursday and deliver the child to school on the Friday;

   (b)Each alternate weekend from 9.00am Saturday until to 9.00am Monday with the Respondent to collect the child from the Applicant’s residence on the Saturday and deliver the child to school on the Monday;

   (c)On the Respondent’s birthday from 9:00am until 9:00am the following day if a non-school day or from the conclusion of school until 9:00am the following day if a school day with the Respondent to collect and deliver the child at the conclusion of the time;

   (d)On the child’s birthday, if not already spending time with the Father, from 4:30pm until 9:00pm if a school day or 9:00am until 5.00pm on the Sunday, if the child’s birthday falls on a weekend with the Respondent to collect the child from the Applicant or school and deliver the child to the Applicant or school at the conclusion of the time;

   (e)Father’s day from 9:00am Sunday until 10:00am Monday or the commencement of school if Monday is a school day with the Respondent to collect the child from the Applicant and deliver the child to the Applicant or school at the conclusion of the time.

   (f)Christmas as agreed between the parties and in default of agreement from 4:30pm on Christmas Day until 7:00pm Boxing Day with the Respondent to collect and deliver the child from the Applicant.

   (g)Subject to Christmas and overseas holiday time, as agreed between the parties and in default of agreement, the first half of any school holiday period, commencing on the last day of the school term.

   (h)As may otherwise be agreed between the parties in writing.

5. The Respondent’s time with the child pursuant to order 4 be suspended so as to allow the Applicant to care for the child at the following times:

   (a)from 5:00 pm 23 December to 4:30pm 25 December;

   (b)on the child’s Birthday, if spending time with the Respondent, as agreed between the parties and in default of agreement then from 4.30pm until 9pm if a school day or 9:00am until 5:00pm on the Sunday, if the child’s birthday falls on a weekend;

   (c)On the Applicant’s birthday, if the child is spending time with the Respondent, from 9:00am until 9:00am the following day if a non-school day or from the conclusion of school until 9.00am the following day if a school day;

   (d)On Mother’s Day from 9.00am Sunday until 10.00am Monday or the commencement of school if Monday is a school day; and

   (e)as may be otherwise agreed between the parties.

6. The Respondent’s time pursuant to orders 4 (a) and (b) be suspended during all school term and long summer holiday periods and such time shall resume after the government gazetted holiday period in accordance with the pattern of time but for the suspension.

7. For the purpose of the changeovers not taking place at the child’s school or as set out in these Orders, such shall take place at the Applicant’s residence.

8. The Applicant be permitted to travel internationally with the child twice each year (or at any time in the event of an emergency) and for this purpose with the Father to pay for economy airfares for both the Mother and the child:

   (a)international travel shall be limited to a period of not more than six weeks and (save for the event of an emergency situation (such as the death of a family member) coincide as far as practicable during school holiday periods;

   (b)the Applicant shall give the Respondent at least 90 days written notice (save for the event of emergency travel) of the intended travel particulars; and

   (c)the Applicant will provide to the Respondent, as soon as available:

   (i)copy of return airfares/e-tickets; and full details including address and telephone contacts of where the child will be ‘staying’ during the time of overseas travel and any formal itineraries;

   (ii)The Respondent’s time pursuant to these Orders be suspended for the duration of the child being overseas with the Applicant;

   (iii)The Respondent have Skype communication with the child as agreed between the parties.

9. The Respondent be permitted to travel internationally with the child every year (or at any time in the event of an emergency) and for this purpose:

   (a)International travel shall be limited to a period of not more than four weeks and (save for the event of an emergency situation (such as the death of a family member) coincide as far as practicable during school holiday periods;

   (b)the Respondent shall give the Applicant at least 90 days written notice (save for the event of emergency travel) of the intended travel particulars; and

   (c)the Respondent will provide to the Applicant, as soon as available:

   (i)copy of return airfares/e-tickets; and full details including address and telephone contacts of where the child will be ‘staying’ during the time of overseas travel and any formal itineraries;

   (ii)The Applicant’s time pursuant to these Orders be suspended for the duration of the child being overseas with the Respondent;

   (iii)The Applicant have Skype communication with the child as agreed between the parties.

10. The Respondent, at the Applicant’s expense, sign all necessary documents required to renew the child's Australian and/or Country A passport upon request at any time 6 months before the expiration date of the child’s passport(s) and that the Applicant retain possession and control of the said passport(s).

11. In default of the Respondent signing all necessary documents to ensure that the child’s passport is renewed before the expiration date, the Respondent pay all costs of and associated with the renewal of the child’s passport and/or any enforcement proceedings.

12. The parties shall ensure the other is kept informed as soon as is reasonably practicable of:

    (a)any medical problems, injury incurred or illness suffered by the child whilst in the care of the other and any medications prescribed for the child;

    (b)any specialist medical appointments with any treating medical practitioner;

    (c)the primary residential address of the other where the child will be residing;

    (d)the telephone contact number of the other and any change thereto.

13. Each party be at liberty to attend the children’s school for the purposes of attending special events, parent-teacher interviews and other like events to which parents are routinely invited or as otherwise agreed between the parties.

14. The parties, their servants and agents be hereby restrained from abusing, insulting or otherwise denigrating the other party or members of the other party’s family or friends in the presence or hearing of the children.

THE COURT DECLARES THAT:

1. It is in the best interests of the child X MALPASS born in 2011 to be known as X NAPIER-MALPASS born in 2011.

THE COURT FURTHER ORDERS THAT:

1. The child previously known as X MALPASS born in 2011 now be known as X NAPIER-MALPASS born in 2011.

2. The Applicant apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 14, and do all such acts and things and sign all such documents as may be required to give effect to that registration.

3. All extant applications be dismissed and the matter be removed from the active pending cases list.

THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Napier & Malpass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2552 of 2016

MS NAPIER

Applicant

And

MR MALPASS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of a boy, X, born in 2011 in Country A.  His mother, who is of Country A nationality and whose family live only in Country A, wishes to take X to live there.  The respondent father is adamantly opposed to this relocation, fearing that his relationship with his son will be, effectively, sundered if this occurs.

2. It should be noted that this matter commenced, at least in this tranche of litigation, in the docket of Judge Williams before Her Honour was appointed to the Family Court.  Notwithstanding that appointment, no application has been made at any stage to transfer the matter to the Family Court where international relocations are ordinarily heard.  Furthermore, although an Independent Children's Lawyer would have been extremely helpful, no application was pressed before me for such an appointment, and it should be noted that given current Victoria Legal Aid guidelines, it is very improbable that an Independent Children’s Lawyer would have been appointed in any event. 

3. Both sides have perfectly sensible and reasonable reasons for the outcomes for which they contend, and this is, to my way of thinking, a very difficult and, indeed, even heart-wrenching matter.

4. For the reasons that follow, and not without considerable hesitation, I find that it is in X’s best interests that the relocation not be permitted, but that the father should fund twice-yearly returns for the mother and X, as he indeed proposes, so that X and the mother’s contact with her family in Country A is kept as significant as possible.

Agreed or Uncontroversial Matters

1. The mother was born in 1980 in Country A and the father was born in 1983.  He is of Country B extraction.

2. The parents met when the mother was backpacking in Australia.  Cohabitation commenced in about 2008 and the parents returned to Country A in 2009 and married in that country in 2011.  Between 2009 and 2012, the mother and father both worked in City C, Country A, where they were living, although there is some minor disputation as to exactly how much work each of them did.

3. Although the parties disagree why it took place, the parents returned with X to Australia in 2012.  They separated in November 2015.  Although there is a dispute as to exactly when it commenced, the father rapidly entered into a new relationship with his present wife, by whom he has two further children, D, born in 2016, and E, born in 2019.

4. The mother suffers from ulcerative colitis and her mental health has been subject to treatment by Ms F since 2017.  The extent of such treatment and the mother’s commitment to it, together with the mother’s mental health, are, to an extent, the subject of dispute.  X has had a number of difficulties, including phimosis (a failure of the foreskin to fully retract), which has been the subject of dispute between the parents, although it seems now more likely than otherwise to have resolved.  (The last medical advice is that there is a 90 per cent that the condition will resolve naturally over time.) 

5. The father is employed as a salesman on the basis that he is given a weekly advance of $1,000, which is then offset against his commissions.  At present, he is over $80,000 in debt to the employer, although he has been employed since 2014 and, subject only to the COVID-19 virus, seems likely to remain so.  The mother is employed as a public servant, together with occasional other work.

6. The mother and X have returned to Country A relatively frequently since they left in 2012, most recently over the Christmas holidays.  X is fluent in Country A, although it is not his first language, and he speaks Country A when he is with his mother, in whose primary care he has been since separation.

The Parties’ Affidavits

1. The parties have filed relatively substantial tranches of affidavit material.  A not insubstantial amount of that is paraphrased in the section above.  It should be noted that in the earlier litigation which took place in 2016, property orders were made between the parties.  Relevantly for these purposes, the wife was to be paid $67,000, although I note her affidavit asserts that much of this was expended on legal issues, (it has not been the subject of challenge), and for the wife to live for 12 months rent-free in the former matrimonial home in Suburb G.

2. I have, of course, read all of the parties’ affidavits, but for present purposes, it’s probably sufficient to notice the following.

3. In her first affidavit filed on 26 June 2018, the wife complained that child support payments were often late.  At paragraph 30, she deposed:

   As respondent’s father continues to try and control and manipulate me I believe I will become more unhappy than I am now and frustrated and resentful about not being unable to move and being trapped by the applicant and continue to be subject to his verbal and emotional harassment.  I say my mental and physical health are deteriorating as a result of the ongoing conflict between us.  I have had to attend regular psychology sessions to overcome the anxiety and panic attacks that would often occur as a consequence of the respondent’s behaviour and emotional abuse.  My doctor has prescribed medication for me but this medication affects my everyday life causing side effects such as chronic fatigue, frequent headaches, drowsiness upset stomach and nausea.  The medication is also a major trigger for my ulcerative colitis.  I have had to take several days unpaid leave as I was physically unfit to work.

4. The mother went on to annex as Annexure C a letter from Ms F dated 27 September 2017.  This letter reads:

   Ms Napier has been attending semi-regular appointments with me since April 2017 for the assessment and treatment of acute stress and anxiety in the context of conflict with her ex-partner regarding coparenting of their son.  Ms Napier reported that her ex-partner behaves in an aggressive, intimidating and manipulate manner towards her and is not upholding the Family Court orders, which causes her significant emotional distress.

5. At paragraph 60 and following of the same affidavit, the mother set out a history of family violence.  The mother noted that she had withdrawn an Intervention Order application in 2016 because the father informed that he would lose his job if she did not.  The mother noted that in August 2017 the father had sent her a text message:

   whatever, not caring any more.  I don’t follow the orders, fuck the orders, fuck the police.  You will get him once I have worked enough hours to pay for child support.

6. The wife also annexed as Annexure D in which in June 2017 she had complained to the father about deficiencies in the home in which she was living pursuant to the Court Orders already referred to and a response from the father, following an apparent dispute about Sports training, in which she said:

   Now I’m really not buying heating. Ever.

7. The mother’s next affidavit, filed 25 October 2019, sets out at paragraph 35 her monthly expenditure.  This amounts to approximately $1,270 per month, together with general living expenses.  She deposed at paragraph 36 to various forms of income which together total about $3,800 per month, although I note that the mother deposed that with X turning eight, her Newstart benefits would decrease and she also noted the possibility that the father’s child support assessment might decrease following the birth of two further children. 

8. Relevantly, the wife went on to refer to her likely employment were she to return to Country A (Annexure J) and the improved financial position she would be in were this to occur.  She proposed a regime whereby X would spend three weeks in long Country A summer holidays and Christmas and Easter in alternate years with the father, with the mother paying half the cost.  She went on to depose to the desirability of including her name as part of X’ names. 

9. At paragraph 68 and following, the mother repeated her complaints of the father’s alleged intimidatory, controlling or harassing behaviour.  She also traversed inter alia a dispute over the issuing of an Country A passport for X.  I note that some of the matters raised (see pages 43 to 46 of 88 of the affidavit and the solicitor’s correspondence from the father) do not seem to me to be in any way extreme. 

10. Annexure J is a letter from the Employer H in City C dated 1 August 2019, in which the mother is offered a job as a customer service officer.  The hours of work are from 9:00am to 5:00pm, Monday to Friday, and the total wages would be € 1,350 per month, plus two extra monthly wages for a total of € 2,700, paid in June and December according to Country A legislation.

11. The father’s affidavit filed on 1 November 2019 explains the various hiccups in his child support payments, some of which were originally paid by direct debit from his employer, but the employer ceased the facility.  The father complained of his not being recorded as a parent at X’ school and complained about the Country A passport issued.  He denoted his new relationship with Ms J as commencing 2016.  He deposed that having told the mother about D’s birth in 2017 (in fact, it was his mother who revealed this to the mother) he deposed that the relationship thereafter had been fraught.  

12. He annexed as Annexure E texts sent by the mother to the paternal grandmother in March 2017.  The language used was florid and in part read:

    This was the last time you saw my face. I will never ever speak to you or any of your low life family members again. 

    X is now aware of his step brother and did not take it well at all.  I have been called a liar and I am now drying his tears. 

    There are no words to describe the hate I have towards you and your family and I will make sure I pass it on to him, might be the last thing I do. 

    I hope you all die soon as you don’t deserve the gift of life.

13. At paragraph 17 of this affidavit, the father sets out in detail his monthly income and expenditure.  I note that in part, this includes a shortfall in respect of an investment property in the sum of $500-$600 per month.  He deposed to not having received any commission in 12 months, though I note that he owns his own house, apparently unencumbered.  I note that at paragraph 18.26, he offered to pay fees at K School for X.  He denoted that he seeks equal time and that his current partner is no longer working.  This was not surprising, she was due to give birth very shortly. 

14. The affidavit is replete with criticisms of the mother and her family.  It deposes to her siblings not being in employment.  He complains of the inadequacy of their accommodation.  He deposes to the area of Country A in which they live being violent.  He opposed the addition of the name Napier because it might, as it were, supplant his own.  He also assessed the costs of travel on a yearly footing as just shy of $30,000.

1. In his affidavit filed on 11 November 2019, the father went further.  He complained that the car proposed to be lent to the mother by her own mother was unsafe, as it was 22 years old (this not being consistent with its apparent 2007 registration).  He went so far as, in effect, to assert that the job offer the mother had received was fraudulent and that the property in which she proposed to live rent-free, being given to her by her uncle, was not habitable. 

2. The parties have filed more recent affidavits.  But in my view, they add little to the overall picture, save that in his most recent affidavit filed 10 March 2020, the father’s financial problems appear to be becoming more acute as a result of the COVID-19 virus. 

The Family Report of Dr L

1. Dr L set out the background to the case and at paragraph 2, in my view accurately in view of the materials in this case and the evidence overall asserted:

   There is a degree of functionality in the co-parenting relationship between the parties.  They do communicate on a fairly regular basis in relation to their son.  Their correspondence is generally via text message or email.  They have attended medical appointments and other events conjointly, availing their son some semblance of a unified parenting approach. 

   Notwithstanding, there have been difficulties within the co-parenting relationship, notably around the arrival of Mr Malpass’ second child (D), as well as disagreements in relation to X participating in Sports.  There are also allegations levelled by the applicant mother suggesting that Mr Malpass has previously been intimidating and controlling, and conversely, claims that Ms Napier has been aggressive and reactive at points.  There have been various Intervention Order proceedings between the parties in years past, and mutual Undertakings in the Magistrates’ Court earlier this year.

2. I note that Ms Napier asserted that single parent payment was due to expire when X turned eight years (paragraph 3).  Dr L traversed the dispute about X’s phimosis at paragraph 7.  At paragraph 16, when traversing his interview with the father and the interaction between the parents, Dr L wrote:

   … Despite a fairly functional co-parenting relationship, Mr Malpass acknowledged that there had been problems, most notably when Ms Napier found out about the birth of his second child. He explained, “the cause was, obviously the birth of D.  Yes, she wasn’t happy.  I guess I didn’t tell her until later”. Though he acknowledged that this would have been difficult for Ms Napier, compounded by finding out vicariously via his own mother, there was a cursory dimension in the degree to which he fully empathised with the applicant mother.

3. In paragraph 20, Dr L recorded that the mother was “tentative and emotionally fragile during the consultation” and opined “Overall, I was left with the impression of a woman struggling emotionally and physically, barely coping with her life circumstances”.

4. At paragraph 23, having noted the mother’s assertion that her financial circumstances were, according to her, perpetually perilous and likely to get worse, Dr L noted:

   Ms Napier described that if she was unable to relocate with X, she would essentially lose the opportunity, because of her age, to regain her life and sense of independence and aspirations, essentially being marooned in Australia against her will.

5. Dr L interviewed X, who said he favoured returning to Country A (paragraph 25).  At paragraph 31, Dr L opined:

   Psychologically, there are clear trends evident in these parents that are likely to inform the way that they will perpetually engage in relation to decisions affecting their son.  Mr Malpass perceives the applicant mother as somewhat entitled in relation to X.  He questions whether she seeks to curtail his involvement.  He believes she fails to recognise the importance of his involvement in X’s life.  Her proposal to add Napier to X’s surname is met with suspicion rather than support.  He very likely views Ms Napier as ungrateful and inclined to find fault with his efforts over the years.  Conversely, Ms Napier views the respondent father as controlling and overbearing. That he has attempted to exert his will on her in many instances following their separation.  She has little trust for him, particularly aggrieved by not being informed about him having further children.  She does not view him as a source of support, nor an alliance she can rely on, adding to her sense of isolation.

6. Dr L noted the parties did not need professional intervention, and despite some difficulties there was a level of functionality in the parents’ interaction (paragraph 32).  Dr L was against an order for sole parental responsibility if the mother remained in Australia, but this was the only practical outcome if she were permitted to relocate (paragraph 33).  Dr L noted that X had a positive and warm connection with both his mother and father (paragraph 34) but that his connection with his mother was closer, and that a week about arrangement that the father sought was not in his best interests (paragraph 35).  At paragraph 36, Dr L traversed X’s views about moving to Country A, noting that:

   In many respects, he presented with an idealised view of living in Country A – one that is predicated by regular and enjoyable holidays there.  X clearly understated the degree of adjustment that would ensue, which was particularly evident when talking about changing schools and developing a new social network.  X was also naïve about the impact that moving overseas would have on his relationship with his father.

7. On this footing, Dr L suggested X’s views should be given limited weight (paragraph 37).

8. At paragraph 38, under the heading risk, Dr L said:

   The only risk issue that has been raised in this case, pursuant to s60CC(2)(b), are claims that Mr Malpass has been controlling and overbearing, and at times physically aggressive towards the applicant mother.  There is limited objective evidence that he has harassed or stalked or surveilled the applicant mother, causing fear or inducing the need to fMr Malpass.  There are not allegations that Ms Napier has been physically assaulted or injured.  The claims of agitated exchanges are disputed, and would constitute far less serious aggressive act(s).  It is obviously a matter of the court to determine which account may be most accurate, and in turn, the associated risk implications for both Ms Napier and X.  Notwithstanding, my own clinical impressions are not that Mr Malpass is intent upon exacting revenge upon Ms Napier, nor that he is fixated on her, nor angry, nor embittered.  Further, he does not present with the type of psychological profile that is noted among men who tend to perpetrate ongoing intimate partner violence following separation. Though I do not doubt that there have been agitated exchanges between these parents at times, both at the point of separation and on occasions thereafter, there is sparse clinical evidence that either Ms Napier or X remain at any acute risk of violence by the respondent father, based on his behaviour and psychological markers.

9. Dr L did not think that the father was in any way averse to paying his child support (paragraph 40).  The report noted that the mother was not seeking to obfuscate or curtail the father’s involvement in X’s life unnecessarily, and did not hold an underlying hatred or distain for him (paragraph 41).  Dr L pointed that the decision before the Court was whether or not the mother be permitted to relocate to Country A (paragraph 43) and set out what he regarded as strong arguments that X would be well served by returning to Country A at paragraph 43.

10. I note in paragraph 43, Dr L opined, relevantly:

    There would be practical support, a furtherance with familial connections, and very likely, enhanced employment opportunities for the mother in comparison to Melbourne.  It is significant to note as well that Ms Napier no longer has the security of her marriage to Mr Malpass in this country, meaning that there is a very real social isolation for her remaining in Melbourne.  She feels marooned here by her circumstances.

11. The report went on to detail the various matters that suggested that relocation would be desirable, and at paragraph 44:

    Further to the above, Ms Napier is a woman who has experienced difficult mental health.  She takes medication and she sees a psychologist.  This is compounded by her sense of isolation.  Upon assessment, she impressed as emotionally fragile.  Exhausted.  Hopeless.  Her one lingering hope is that she may be able to move on with her life back in her native Country A, having her son by her side. She also has significant medical issues, that she says impact her capacity to work.  If the court opposes her proposal, I suspect there will be direct implications on her mood and emotional well-being.  Although it has not been my role to undertake the mental state examination with this woman, there is a clear and testable pattern of her mental health being compromised in recent years, and likely affected by the substantial stressor inherent by being prevented from ever returning to her home.  A very real and lasting sense of hopelessness will assuredly attend this woman, which in combination with her financial challenges, is likely to impact on both Ms Napier directly, though also on X.  Her functioning in the parenting role, in areas such as emotional availability, level of activity, motivation, implementation of boundaries, and co-parenting, are likely vulnerable to deterioration if she is compelled to remain in Australia indefinitely.

12. The report, however, went on to set out in equally clear and lucid terms the likely deleterious effect of the return to Country A upon X’s relationship with his father and the non-development of a relationship with his two half siblings. The report noted at paragraph 46:

    In all, the question before the court is whether the impact on this little boy’s relationship with his father, which will be considerable, may be outweighed by the positive benefits that will flow to the child from the vastly improved circumstances of his mother.  The equation is that simple in my view.  Ms Napier is attempting to return to a place where she has support and familiarity, and to better her outlook and financial position – she is not unreasonably seeking to pursue another relationship or for some unrealised perceived benefit.

13. The report went on to note that the change of name was not a matter that would have any tangible effect upon X given his age (paragraph 48).

14. The report did not make any recommendation in terms of as to whether the relocation should be supported, the matter being clearly left to the Court.

The Evidence given and the Submissions made at Court

The Opening and Evidence of the Mother

1. What follows is taken from my notes.  Self-evidently, it is not a transcript but records aspects of the matter that strike me as being significant.

2. Counsel opened his case in a thoroughly competent manner, introducing the background facts and the mother’s proposals.  Counsel pointed to the significant disparity in the incomes of the parties, noting that the father had an investment property and a holiday home (it is, in fact, a family holiday home; it is owned by his parents). 

3. Counsel stressed that the mother’s position in Country A would be far better with employment, secure accommodation and family support.  Counsel noted the good relationship between X and his family in Country A. 

4. The mother adopted her affidavits as true and correct. 

5. Cross-examination commenced with questions about the mother’s employment.  She has occasional cleaning and babysitting work. She is on call.  She has done cleaning once or twice this year and it is arranged through a friend, paying $50 for two hours.  She is paid in cash.  This year she has had no babysitting work, but she was busy in December last year.  She made maybe $400.  Cleaning might produce $50 per fortnight.

6. The mother was taken to her affidavit material in the 2016 proceedings.  She was in good health in 2016 and had deposed in paragraph 22 of her 2016 affidavit she had no intention to live in Country A.  The mother conceded this but said that things had happened since.  It just went downhill.  There was no evidence in the earlier affidavit that she was unhappy or homesick.  She was living in Suburb G with the father paying the mortgage which continued for 12 months.  At the time, the father was paying $723 a month as assessed.  The orders for regular time with both parents involving a 10/4 regime had continued.  She had felt intimidated by the father.  They went to mediation but it did not work out. 

7. The father had requested more time and occasionally she agreed, but this was not ongoing. She felt pressured by his demands.  She accepted that X had a loving relationship with both parents, but she did not agree that they co-parent civilly.  They had not spent Christmas together as a family.  The father was invited in the morning to open presents.  He came, opened the presents, took a video and left.  There was a lot of conflict.  They had been in and out of Court for the last four years. 

8. At the moment they are not talking.  There was a lot of argument before they chose a school.  She conceded there had been extensive changes about X’s nits.  The mother conceded that the father had on occasion been courteous but said that in more serious matters he was not.  There was cross-examination about a time when the mother looked after D.  D came over for an hour and a half.  The father had asked her to look after D when he went to the hospital, but she had said no.  The father had not invited her for coffee.  She would not go because she did not feel comfortable. 

9. The father had recently paid $4,200, which was the cost of airfares to Country A, but this was the first time he had done this.  The mother conceded this was a voluntary payment.  She had never attended any of his houses.  The father had offered to collect them from the airport recently.  He had thanked her for photographs and presents.  When it was put to her that the father attended school award days, the mother said he had attended the last one.  He attended the school concert in 2019, but she could not remember if he did in 2018.  She could not remember him paying for swimming lessons.

10. The mother was cross-examined about Ms J.  She conceded that Ms J is friendly towards her and is respectful and polite.

11. The mother was cross-examined about the occasion she spent time with X in Country A in 2018 but in my view the text messages about this show neither parent in any better light than the other.  Time did in fact occur briefly.

12. The mother admitted that she became aware of the birth of D through the paternal grandmother.  She denied that the parties had had a civil relationship before that and said that they had argued a few times.  She denied that her attitude changed when D was born.

13. The mother was taken to her text messages, Annexure E to the father’s trial affidavit.  These were the abusive messages sent to the paternal grandmother in March 2017.  The mother said that she was angry.  She said she was sorry, but she is not angry any more.  This was four years ago and those feelings are gone.  They are now able to talk to each other without that sort of language.  She had consulted Ms F and spoke to her about her relationship with the paternal grandmother.  She had followed Ms F’s advice to seek contact. 

14. The mother conceded that Ms J had asked for clothing but said they do not have a relationship.  One day, she had asked the father to take X swimming, but she ended up taking X herself even though she was really sick.  The mother denied making decisions without notifying the father.  She was cross-examined about the renewal of X’s Country A passport.  She said that the father was informed and she asked him if he would come to the consulate, but he said no.  I should interpolate and say that the mother’s answers about the issuing of the passport had every sign of being made up on the run. 

15. The mother was cross-examined about an appointment at the M Hospital in 2017.  She said the father’s assertions were incorrect and that he laughed at her when she suggested that X needed surgery.  She had not understood the need to inform the father of every single thing.  After she found this out, the father attended every appointment.  She had thought she had understood what joint parental responsibility meant.  She was advised that X needed a procedure, but then there was a joint attendance and the surgeon gave advice.  The father had relied upon the internet. 

16. There was further cross-examination about the visit to Country A in 2018.  It is not necessary, as I have said, to traverse this further.  The mother stated she was not still bitter towards the father.  When it was put to her she would not notify the father of matters in relation to X if she moved to Country A, the mother said that she loved her son and will do the best things for him. 

17. When cross-examined about child support, the mother conceded the father presently pays $992 per month.  He had paid $200 per week previously, in addition to other payments.  The mother said they both pay for their own things.  He pays for Sports and music lessons.  She had not removed the father as a parent contact for the school.  The school must have done it.  The issue that arose was that he had taken X out of school on a Monday without her permission.

18. The mother had changed her bank account to stop the $200 each week.  She felt controlled by the father and was not getting child support.  He has offered to pay K School from year 5.  He gave her email address to K School. 

19. The $992 child support was based on tax returns.  She is still getting the $992.  She believed the father had not told the Child Support Agency about his second child in 2019.  The father was now involved with X’s school events, but this was only in the last year.  She had no knowledge of X’s relationship with the father’s extended family, although he sees his grandparents.  X is reluctant to tell her what happens when he is with the father.  She has not talked about the case with X, although she has talked to him about moving to Country A and what he feels about that.

20. The mother was not sure about the father’s proposal for eight weeks of travel to Country A each year.  She does not know if she can afford two trips.  She started to study this year.  It is a course at N College.  This was a last-minute decision and she could use this in Country A.  She will finish in November and it takes 50 hours per week. 

21. There is another person living where she lives.  She has the same surname.  She helps with bills but does not pay rent.  She looks after X when the mother cannot. 

22. The paternal grandmother is the only person who has helped her.  She does not know about X’s relationship with his cousins. 

23. The mother was cross-examined about accommodation in Country A.  She said they lived for six months with her parents, but it was not a small two-bedroom apartment.  She could stay with her mother or her sister.  She had not ceased work in 2011 because her employer went into administration.  She went on maternity leave.  She asserted that the father worked during on the weekends, and made a lot of money.  He was homesick and wanted to come here.  He struggled with learning the language.  As his wife, she thought this was the best idea.  They had not discussed moving to Country O and she had not stopped photographs of X and E.

24. It was put to the mother in terms that she was relocating to get away from the father.  The mother said not at all.  He will always be the father.  He will always be involved in X’s life wherever she lives. 

25. The mother was cross-examined about time for the father if she was to live in Country A.  It was put to her there was no detail in her materials about flights or changeover.  The mother said that they could work this out with their lawyers.  It was put to her that she had not given this any importance, but she said she relies upon her lawyers.  Country A school holidays are from June to September.

1. The mother confirmed the car she was being offered was her mother’s.  She proposes that X attends P School in Country A, which is about 15 minutes from where she lives.  She has not been employed in Employer H before.  She became aware of this job through a friend, Ms Q.  She became aware of it last year by word of mouth.  They just needed someone who could speak English.  Her own sister has no contact with the employer. 

2. She went to speak with the firm when she was overseas and the job was still there.  There is someone else there, but they are happy to wait until the end of this year.  There will be more tourists and they want somebody who speaks English.  The hours would be 9:00am until 3:00pm, Monday to Friday.  The office closes between 1:00pm to 3:30pm, but she has to work 9:00am to 5:00pm, and another girl works until 7:00pm.  School starts at 8:00am.  Her mother and sister will drop X off.  The family will collect him at about 4:30 pm.  Travel from City C to City R is one hour and she will be home by 6:30pm.  X and his father will be able to speak in the morning.

3. The mother was cross-examined about her proposed accommodation.  She has not lived there recently.  The property is fully renovated and just needs painting.  Her uncle and his family do not live there.  X is friends with his cousins and he has a best friend in Country A.  X uses electronic communications with his father now and uses FaceTime or an iPad.  There had been regular communication when they were in Country A.

4. Her family does not speak or understand English.  She stays out of the room when X is speaking to his father and always returns his calls.  Her mother will provide a car because she works 500 metres from home.  Her brother lives in the same apartment and he also has a car.  She would use the car while they were overseas.

5. The mother confirmed that she had first contacted Ms F in March 2017.  She was referred by her general practitioner.  She saw her more frequently at the start and went there because of her mental health.  There was no one to help her.  She had not gone to get evidence for her case.  She was not coping.

6. The mother has been employed since separation.  She has been overseas five to six times since the orders in 2016.  She was aware that it was a 50/50 decision about the surgery.  She told Ms F she wanted to go home in 2018.  She was telling Ms F what was happening in her life.  She certainly suffered stress.  She could not remember if she had told Ms F about Mr Malpass’ mother.  She had had seven appointments between February 2018 and August 2019.  She was irregular.  She could not afford to go.  She had talked about relocation and the Court proceeding because she had no one else to talk to.  She was just explaining what was happening.  She did not receive child support for six months from July 2018.  She is, however, able to function.

7. At this point, Ms F was interposed by agreement and the mother left the Court while her evidence was given.  I will return to Ms F’s evidence in due course.

8. The mother was further cross-examined following Ms F’s evidence.  When asked what time it should take place if she was to relocate, she said it should be one year for three weeks in Country A and one year for three weeks in Australia.  Then three weeks in Country A and two weeks in Australia.  School holidays in Country A are 15 weeks, but they are different to the Australian holidays.  Time can always be increased.  It was put to her that travel costs were significant, but the mother said that the father and his family travel all the time.  She was prepared to pay half of X’ expenses and travel.  She could stay in Australia for three weeks because she will have leave and could extend that time.

9. If relocation was not permitted, she was happy with time the way it is, although she was prepared to move to a 9/5 arrangement.  If she was allowed to relocate, she was agreeable to mediation to sort out the details.  She conceded that she has friends in Australia.  Ms S had funded her holiday in Country T last year.  She does have friends, but they are not daily support.  They provide no psychological report.  It is unrealistic to go to Country A for two months.

10. The cost of living in Country A is way lower than here.  She would have free accommodation.  The father’s last travel was in 2018.  He can stay in her house if he comes to Country A and she would move out.  X has a loving relationship with both parents.  He would retain a relationship with his father.  D and X get on well.  X is very comfortable in Country A.  He will miss his father, but she will support him and make sure he sees his father.

11. The mother was cross-examined about Dr L’s report.  She is happy to have shared parental responsibility.  She still seeks a name change.  She wants to add her surname.  X keeps asking why he has a different name.  She believes the child needs surgery.  The father does seek equal time and they do live close together.  Most changeovers will be at school or kinder.  X would not cope with a 7/7 arrangement and would not cope emotionally.

12. In re-examination, counsel tendered exhibit A2, which is the photographs of the property the mother said she will have available to live in Country A.  It should be noted that it is her uncle’s second house and that the cousins go there sometimes.  It should also be noted that the father’s position was that all save two of these photographs were not, in fact, photographs of the property, but in fact, were photographs of other properties and that the mother knew this. 

The Evidence of Ms F

1. Ms F is a clinical psychologist.  She has not had contact with her client since her report.

2. Under cross-examination by counsel, her report was tendered as Exhibit A1.

3. Under cross-examination by counsel for the father, Ms F conceded that she had prepared an earlier report.  This was not for the general practitioner, but she could not recall who it was for.  There had been five to six appointments over six months.  It was a stressful situation.  She could recall messages exchanged with the mother, but not the detail.  She did not recall the mother hating the father.  She has hundreds of clients.  She has not heard the father, nor met X.  When it was put to her that relocation has been raised from February 2018 onwards, Ms F thought this sounded about right.  The appointments were irregular.  There were lots of barriers, including finance and childcare and work.  All the information was self-reports from Ms Napier.  Ms F conceded that she was not an expert witness and traversed limitations to her qualifications.  She had not assessed the mother thoroughly for the purposes of the report.  She was not an expert in adjustment disorder.

4. In re-examination, Ms F confirmed that she was competent to diagnose adjustment disorder.  Under further questioning by counsel for the father, Ms F confirmed that adjustment disorder is treatable.

The Evidence of the Country A Witnesses

1. The mother had filed a large number of affidavits from persons in Country A attesting to her offer of employment, offers of accommodation and a car, and offers of family support.  I ruled these affidavits not be read and indicated I would explain why in my judgment.  In my view, it was wholly impractical to take the evidence in any event.  It was proposed that the witnesses give their evidence by telephone.  They do not speak English and it would have been necessary to have an interpreter online or in the Court in Melbourne to give viva voce interpretation of the questions and answers that might have been put.  The practical difficulties involved are self-evident. Moreover, as I pointed out during the hearing, it was open to the mother to give this evidence directly herself and she indeed did so. 

2. The evidence would, of course, be admissible, this being a parenting proceeding.  Furthermore, subject to the assertion that it is, in effect, a forgery, the job offer is, of course, a business record and admissible in that light. I did give consideration to having the affidavits read, but giving them lesser weight because of the lack of cross-examination.  In this proceeding, which has been keenly contested, however, to do this would simply be to build in an appeal point for the father were matters to go against him.  In my view, given the intensity of the dispute, it was not only all but impossible to actually take the evidence but unfair to the father to do so.  For these reasons, I did not permit the affidavits to be read. 

3. I should observe in parenthesis, however, that since I have accepted for reasons I will come to all of the mother’s evidence about her likely circumstances in Country A, the father’s objections are probably really of no great moment.

The Opening and Evidence of the Father

1. Counsel confirmed that the father sought the orders in his case outline being, essentially, an equal time arrangement from school to school.  The father was prepared to pay for two economy tickets to Country A twice a year.

2. Counsel laid stress upon the legislative pathway, emphasising what was submitted to be legislative intent that there be substantial involvement by both parents.  Counsel submitted that it would not be possible for X to have a meaningful relationship with his father if he went to live in Country A, and likewise his two half-siblings.  Counsel pointed to the allegedly vague proposals made by the mother which suggested that she did not regard the father’s involvement as important and would not support the ongoing relationship.

3. The father was called and adopted his affidavits.  He said his 2019 PAYG income was $76,500 and this was tendered as exhibit R1.  He tendered as a bundle documents sought pursuant to a Notice to Produce, which detailed his financial circumstances.  He receives a weekly retainer which is reduced if his sales go through.  He is presently $81,572 in debt to his employer.  He confirmed that the holiday home is owned by his parents.  He owns the property at U Street, but lives at V Street.  There are individual mortgages in a total of about $1.35 million.  He was asked to look at photographs of the property in Country A, where the wife proposes to live (exhibit A2) and said that only the two external photographs were indeed of that property.  He confirmed that he had been to that property once on Christmas Eve 2010. 

4. Under cross-examination, the father confirmed that he had been to the house in City C on Christmas Eve in 2010.  It was put to him that he might be mistaken about the photographs (which he was effectively asserting were a sham).  He had first said it was not possible that he was mistaken.  He then qualified this by saying that this was possibly so.  He then confirmed that he thought that the mother was lying. 

5. They had begun living together in Australia in 2008 and moved to Country A from 2009 to 2012.  He had worked as a salesman and also as a customer service officer.  X was born in Country A and the mother took 12 months maternity leave.  His own mother came over to support them.  The mother had family support too. 

6. The father could not recall if X travelled on his Australian passport when they moved to Australia in 2012.  They had applied for an Australian passport while in Country A.  The father said the mother had support from him when they were in Country A and still does.  They came back because he wanted to pursue a career.  They stayed with his parents in Suburb W and then moved to Suburb Y.  They bought the property in Suburb G for $400,000 and a further property in Z Street for a total of about $800,000.  Both had mortgages. 

7. They separated in November 2015, when X was just four.  There were property and parenting proceedings.  He did not disclose the fact of his pregnant partner during those proceedings, nor did he disclose her property or income.  It was agreed the mother would live in the Suburb G property for 12 months.  There was an order made for an Country A passport.  X was to live with the mother and spend alternate weekends and Thursday nights with him.  There were no contraventions.  He has a close and loving relationship with X. 

8. Sometimes, things have not gone so well.  When it was put to him that on occasions, he had not returned X when required, the father said he could not remember any times when he did so.  He was taxed with page 1 of exhibit A4 and said that X had been sick on the day he sent that message.  He agreed that he sent the message on page 2, where he had relevantly asserted “I don’t give a fuck. You will get him once I have worked enough hours for child support”.  He said he had been up with X all the previous night, as he was sick.  He had had to go to work.  He did apologise for the message.  He could see it would make the mother feel powerless, but this was not what he was trying to do.  The father said they would possibly go to Town AA if relocation was permitted, because they would go there every school holidays.

9. The father was cross-examined about page 3-4 of exhibit A4, which is email correspondence in May 2017.  The father tried to maintain that he was living at the address he had disclosed, but I should say in parenthesis that his answers were thoroughly unsatisfactory.

10. The father was then cross-examined about the issue of the Country A passport.  He had received one email about the Country A passport but could not say if he had two.  He did not consent to the issue of an Country A passport.  He remembered an email from the Country A Consulate.  He had had issues with the Country A passport, but said that he had not refused to sign documents.  

11. The father confirmed that the mother and X were to live in the Suburb G property for 12 months.  There was an issue about heating.  He could not recall the exact dates.  He was cross-examined about page 6 of exhibit A4.  In this, he had referred to the mother as an “arsehole” and told her that it was better that she left the property to get a rental.  The father said that being reasonable means not letting X freeze in the house where he lived. 

12. When it was put to him that calling the mother an “arsehole” was abusive, the father said to a certain point, yes.  He said that the mother could have bought a heater from Kmart and there was heating in the property already.  The father was cross-examined about page 8 of the exhibit A4.  This included the following extract:

    Mr Malpass: Don’t worry, Ms Napier.  When your begging me like s gipsy to help you with rent then you can shove you notifications high up your arse. 

    Ms Napier: Is X at school today? 

    Ms Napier: Is he still sick? 

    Mr Malpass: Yes, still sick. 

    Mr Malpass: I don’t appreciate you throwing the tape yesterday and abusing me and in front of X.

13. The father was reluctant to admit sending these messages.  He said they had their ups and downs.  He was frustrated because he could not talk to X on the phone.  He ultimately appeared to concede that these messages were demeaning. 

14. The father conceded sending the messages on page 9 of exhibit A4.  He said he guessed he was venting.  He did not want the mother to feel vulnerable.  The father said that the mother did have support in Australia.  He said that she has also the support of Ms J, the family and himself.  He had apologised and they had moved on.  The matters complained of were four years ago.  He appeared to understand that the mother might not readily embrace his help.

15. The father conceded that there was some child support assessment in place.  Exhibit A3 was a letter from this child support agency dated 12 March 2019.  His tax refund was intercepted on 13 September 2016 to discharge unpaid child support, and this occurred again on 14 July 2017. When it was put to him that he had used threats about child support to get the mother to do what he wanted, the father said he had mentioned it.  The father was taken to page 20 of exhibit A4, in which the relevant text was:

    Mr Malpass: You do that and I’ll call child support Monday to claim the. Ew dependant and you will be down $200 buck a month so smarten up your act. 

    Ms Napier: Threats? 

    Mr Malpass: No heating

    Mr Malpass: No more mister nice guy

16. The father said he could not remember these messages.  He could not recall also whether he had sent and emailed to the mother to withdraw her Intervention Order application.  He conceded, however, sending an email message on 2 October 2017 (page 21 of exhibit A4) in which he had pressured the mother to withdraw the intervention order.  He was aware that his own mother had sent a message to the mother saying “don’t bite the hand that feeds you”.  He said his conduct had been businesslike.  He was shown pages 10, 11, 16 and 17 of exhibit A4 (which show disputation between the parties) but said things have worked despite square-ups.

17. The father said he had been on holidays in 2018 to Country A.  He went to Country BB, Country A, Country CC and Country DD.   He has not been to Country T with X.  He had been to Country EE a few times.  He had taken X to the flight simulator for two days on his way to Country A.

18. The father was then cross-examined about pages 25 to 28 of exhibit A4.  These were all to do with time spent in Country A in 2018.  X has a good relationship with the mother’s family in Country A. 

19. I would interpolate again and say that these exchanges do not, in my view, show either parent in a very satisfactory light.

20. The father said he pays for X’s soccer fees, his Sports and proposes to pay private school fees.  It was put to him that this would cost between $26,000 and $33,000 but the father said that he hopes that X will get a scholarship.  The father said he had paid for flights in 2018 for the mother and X to go to Country A, which were $4,200.  He has two mortgages and has a credit card.  He has bank accounts tied to the mortgages.  He had brought all his wages information.

21. There was questioning about the possibility of phone calls from Country A to Australia.  The father was most reluctant to admit that it would be possible for him to take phone calls in the early morning.  He said it would be challenging to take phone calls at 9:30 am.  The tenor of his evidence was to the effect that this would not work.

22. X is doing okay at his sporting activities.  He has been there for three weeks and has friends.  The father speaks very little Country A and is aware that X speaks Country A at home with his mother.

23. The father said he had read Ms F’s report briefly.  When asked what response he had to it, he said he did not have a response.  The mother has a strong friendship group in Melbourne.  He does not think she has the symptoms described by Ms F.  She does not have social isolation.  She should get on with it.  He agreed, however, with Dr L’s assessment on paragraph 35 that the mother is a highly competent mother.  He disagreed that it would be better for X to live in Country A.

24. In re-examination, counsel tendered exhibits R2 and R3, being additional text extracts designed to give what, it was ultimately submitted, was a better understanding of the materials on which the father had been cross-examined.  The father said he had eventually installed a split system heating near the two bedrooms in the Suburb G house.

25. The mother had wanted the whole of the stay in City C to be with her in 2018.  He found out she was going overseas about five days before he had left, but it was not clear she was going to City C.  X might not take his phone calls. 

26. Counsel tendered as exhibit R4 documents subpoenaed from copies of documents subpoenaed from Ms F. 

The Evidence of Ms J

1. Before coming to Ms J, I should note that the maternal grandmother was not required for cross-examination, but her affidavit was read as part of the proceeding and I have due regard to it.

2. Ms J is a stay at home mum.  She resigned from her job two years ago and was hospitalised for some time after the birth of her second child.  Under cross-examination, the mother confirmed that D was born in 2016.  She first met the father in 2015.  She was still married until November.  She did not know the husband was married.  The father was supportive during both pregnancies.  Cohabitation commenced in about 2016, at which time she was still working. 

1. She was a professional earning a package of $120,000.  They had travelled overseas in 2018.  She paid $20,000.  The father’s hours of work are flexible.  He came home when she had the baby.  He can be home whenever she needs him.  She calls him during the day sometimes and he takes the calls, unless he is with a client.  She has no shared bank accounts with the father. 

2. Ms J was cross-examined about paragraph 14 of her affidavit.  She said that the deterioration in the relationship between the father and the mother improved after a couple of months, but was not as efficient as it used to be.  She conceded that she had talked with the father about preparing her affidavit. 

3. In re-examination, Ms J confirmed that prior to February 2017 her communications with the mother had been easy.  Afterwards, this was difficult.  Often she could not get a hold of the mother, who was obviously upset. 

The Evidence of Dr L

1. Under cross-examination by counsel for the mother, Dr L confirmed that the father was desperate to keep his relationship with his son.  He did not have the report of Ms F, but was aware that the mother was seeing a psychologist.  The mother was tearful at points, but it was not his role to diagnose her.  He preferred not to comment about prognostic issues.

2. X is well-connected with both parents, but is far more acquainted with his mother.  There was a palpable warmth between the mother and X, she being his predominant carer.  A 7/7 arrangement was not in X’s best interests.  He would miss his mother and be homesick.  X is a lovely little boy and he was positive about moving to Country A, although Dr L referred to his reservations in his report.  X is a robust little boy and not overly sensitive.  He speaks Country A.  He has a bank of experiences with his father and can speak independently to his father.  The mother does not intend to curtail the relationship with the father.  It would be positive whether they lived in Australia or Country A.  The mother is in limbo and wants to return to Country A.  There would be a steady decline in her functioning and that will impact on her capacity to parent.  It is the hope of going to Country A that keeps her going.  X is well-adjusted to the current arrangements.  Communication between the parents is perfunctory.  If the mother is compelled to stay, this will affect her health and therefore X as well.

3. Under cross-examination by counsel for the father, Dr L repeated that it was not for him to diagnose.  The father is not equally attuned to X, but he is a great dad.  Kids from separated families do well if the parents cooperate.  The relationship with the father will be critically diminished if X goes to Country A.  X wants to move to Country A.  He has a good relationship with his father.  The father is a fairly competent parent.  X is well-settled in the current arrangements.  He has been in the 4/10 arrangement since he was four.

4. Dr L did not recall the abusive text sent by the mother to the paternal grandmother.  The father thought the mother was upset by the birth of his new child and her supposition that he had had an affair.  The mother was concerned with issues like finances and heating.  It was not his impression that the mother was trying to get away from the father.  He would not use the expression marginalising to describe what would occur if X was overseas.  The relationship would alter if X was overseas.  He did not agree that the relationship would be of no importance, were this to occur.  If X was in Country A, time with the father in Country A and Australia would maintain a significant relationship with the father and it would not be worthless.  It would be impossible, however, to maintain the relationship with his siblings if he lived in Country A.

5. Dr L noted that equal shared parental responsibility was agreed.  When it was put to him that the father was proposing an increase in overseas time to eight weeks from six weeks, Dr L says that the mother thought this was only while the legal proceedings were on foot and it would not be sustained.  He was aware the mother went to Country T in 2019.  The mother feels marooned in Australia.  She is stuck in the country.  She is not driven by a need to get away from the father and she is not concocting her distress.  It was not his impression that X was coached.  He is aware that the mother wants to move.  He stood by his report.  It is not an aversion to the father that is driving the application to relocate.  The mother is prescribed psychotropic medication and is clearly unwell.  Both parents present as reasonable.

Final Submissions

1. I do not propose to paraphrase the parties’ final submissions in any detail.  Both were, if I may say so, thorough and extremely competent.  As might be expected, the father concentrated on the objects in the act and the probable deleterious effect upon the child of moving.  He also emphasised that, in his submission, there is no such thing as a relocation case.  It is always a question of a child’s best interests.  He pressed for a 7/7 arrangement, but conceded that more realistically it might be 9/5.  Counsel pointed to the difficulties that would occur in communication if relocation took place.

2. By way of contrast, counsel for the mother emphasised the fact that although the relationship between the father and mother would change significantly if relocation took place, this was inevitable in every international relocation.  He stressed the benefit to the mother of the move and emphasised the aspects of the evidence that were put to support the controlling nature of the father’s behaviour.

3. These are only some of the matters that counsel traversed, but they give, I hope, a flavour of what was put.

What is the Statutory Pathway in a Case Like This?

1. Counsel for the father’s submissions, in emphasising over and again the asserted nonexistence of relocation cases, seemed almost to go so far as to say that the objects in the legislation together with the relevant statutory pathway effectively meant that relocation could simply never be allowed.  I do not accept that this is so.  While the talk of relocation cases obviously runs the risk that relocation is considered in isolation and thus diverts attention from the true nature of the issue, namely what is in X’s best interests, it is self-evidently not the case that relocation can never occur.  This is a parenting dispute, in my view, in which one of the parties’ proposals is that it is in X’s best interests to relocate.

2. The objects of Part 7 of the Family Law Act 1975 (Cth) must be borne well in mind. I note that the objects of the part (section 60B(1)) are to ensure that the best interests of children are met by ensuring the 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. A principle that underlies these objects, except wherein it is or would be contrary to the child’s best interests, (section 60B(2)) include that the children have the right to know and be cared for by both of their parents and to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care, welfare and development. Those objects obviously have to be borne in mind, but section 60A is, in my opinion, the overarching and vital consideration, namely 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.

3. Counsel referred me to a number of authorities that might be thought to bear upon the Court’s deliberations in this instance.  In particular, counsel for the father referred the Court to McCall v Clark (2009) FLC 93-405 at [109] to [122] (“McCall v Clark”).

4. That case involved a proposed international relocation. The Full Court noted at [52] that section 60CA was not changed by the 2006 amendments and “it remains the predominant provision in determining an application for parenting orders”.

5. It should be of course remembered that, pursuant to section 61DA, the Court is required to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless (subsection 61DA(4)) the presumption is rebutted as not being in the best interests of the child.

6. This, of course, is of further significance because pursuant to s65DAA if a parenting order is to provide that a child’s parents are to have equal shared parental responsibility for the child (something not ultimately in dispute in this case) the Court must consider an order for equal time and whether it is reasonably practicable, and if so making such an order (section 65DAA(1)) or consider making an order for substantial and significant time (section 65DAA(2)).

7. In McCall v Clark, the Full Court said at [85]:

   85. In addition, given that there is no presumption in favour of or against relocation, the Federal Magistrate needed to weigh up the prospect of the father moving to Dubai or the mother moving to Brisbane.  Paragraph 82(d) suggests that the Federal Magistrate applied an incorrect test at this point having said:

   Whilst there may be advantages and disadvantages for the parties living in either Brisbane or Dubai, I am not able to conclude that the advantages of them living in Brisbane so far outweigh the advantages of them living in Dubai that for that reason alone, Brisbane should be the place of choice for the parents.  [our emphasis]

   86. It is not apparent to us exactly what the Federal Magistrate meant by this paragraph.  There is no test that requires one set of proposals to “so far outweigh” the other.  But more importantly, the advantages and disadvantages that seem to have been discussed are those we have referred to and do not consider a shared arrangement or a substantial and significant arrangement as required by s65DAA against which perhaps other factors could be measured.

8. Having made these general references to the statutory scheme, I would refer to and repeat below what the Full Court said in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Findings about the Evidence

1. The mother was generally reasonably responsive to most of the questions put to her, although palpably defensive at times.  In my view, she was prone to exaggerate the measure of conflict between the parties.  It was also plain that she has been and remains at times extremely angry with the father, most particularly in relation to his new relationship with Ms J and the subsequent arrival of their children.  I have already commented one part of her evidence appeared to me to be made up on the run.  She was non-responsive when cross-examined about the instance of spending time in Country A, and is clearly still embittered towards the father despite her denials.

2. The father, by way of contrast, I regret to say was a poor witness.  He was evasive and non-responsive throughout his evidence.  He gave frequently unresponsive, self-serving answers.  His answers, when pressed about the unpleasant texts he has sent to the mother from time to time were, in my view, utterly unsatisfactory.  He hemmed and hawed about the photographs of the premises in which the mother proposes to live in Country A in a fashion I found most unsatisfactory.  It is clear that he regards the mother as lying on her oath about the photographs (and indeed a number of other things).  He holds the darkest view of her.

3. It is not necessary to comment on the evidence of the professional witnesses which was unremarkable.

Parental Responsibility

1. The parties, in the ultimate, have agreed that there be an order for equal shared parental responsibility.  If I understand the matter correctly, this is to be the case, even if the mother lives in Country A with X, albeit that it must necessary follow that, as a matter of practical politics, the work that such an order would have to do would be significantly diminished by the tyranny of distance. 

The Spend Time Regime – The Primary Considerations

1. In this case, everyone agrees that it is to X’s benefit to have a meaningful relationship with his parents.  Although each parent has complaint to make of the other to this or that extent, it is clear from the parties’ positions that it is not seriously put that there is any need to protect X from physical or psychological harm.  Although this deals with this important subsection succinctly, these broad general considerations are not the subject of dispute.

The Additional Considerations

Section 60CC(3)(a)

1. X has expressed a view that he wishes to go in and live in Country A.  There are a number of considerations which operate on the weight that this view should be given.  First, it has undoubtedly been fomented in discussions with his mother, who X is well aware wants to go and live in Country A.  I note that Dr L did not think that X had been coached and I accept that that is so, but there must be some weight given to the fact that X is aware of his mother’s strongly-held views.  More importantly, however, X is only eight and I entirely accept Dr L’s evidence that his views of living in Country A must necessarily be somewhat idealised.  On the relatively frequent visits he has had to Country A, he has always been on holiday and his mother also.  He has not had to confront the possibility of his mother being at work.  Indeed, the mother’s evidence would be that she would not return to work at night time until about 6.30 pm.  She would be leaving early in the morning to be at work in City C.  The fact is that this is a radically different situation from having his mother present with him all the time, as it is when he has been on holidays.  Similarly, relatively brief holidays are a very different matter from permanent residence.  During his holidays in Country A, X has always known that he would shortly be returning to Australia, where he has lived for all of the life that he could remember.  Although X’s views are in no sense irrelevant, the weight to be given to them in these circumstances must be heavily qualified.

Section 60CC(3)(b)

1. Once again, Dr L’s evidence is clear.  X has a palpably closer relationship with his mother, who has always been his primary carer since separation (which occurred, after all, when he was only four) and it is far more probable than otherwise that, for the foreseeable future, this will remain the case.  Nonetheless, he has a well-founded and good relationship with his father, who, for all his limitations, has been described as a great dad by Dr L.  It seems clear also that he has a good relationship with the paternal grandmother.  Having seen Ms J give her evidence, and she was an excellent witness, I have no doubt that X has a perfectly workable relationship with her at the very least and there seems no reason to disbelieve the reported excitement of the arrival of E and it is only reasonable to accept the uncontradicted evidence that he has a good relationship with his half-sibling, D.

2. Likewise, there is no reason whatever to doubt that X, who has, after all, been to Country A on a number of occasions, has an excellent relationship with the mother’s extended family in Country A and appears to have at least one other friend there too.

Section 60CC(3)(c)

1. No criticism can be made of either parent in respect of the extent to which they have taken the opportunity to participate in decisions about the child and to spend time and communicate with him.  What does fall for consideration here, however, are the father’s endeavours from time to time to extort more time from the mother.  I do not accept the endeavours the father has made through his evidence and in counsel’s submissions to minimise the extent to which he has sought to use, from time to time, child support or accommodation to pressure the mother to give him what he regards as his right to more time with the child.  It is a very unattractive and controlling sort of behaviour and the mother is understandably wary of it.

Section 60CC(3)(ca)

1. Both these parents have done what they reasonably could be required to have done to fulfil their obligations to maintain X.  I accept that when looked at fairly, the father has fulfilled his child support obligations from time to time.  These were deducted and sourced through his employer until the employer ceased his deductions and thereafter, there were glitches from time to time, not helped by the mother’s lack of desire to accept additional cash funds.  The father’s insistence upon knowing her bank accounts in the face of her clear objections, once again shows a lack of insight on his part and a tendency to controlling behaviour.

Section 60CC(3)(d)

1. This subsection is, in many ways, at the core of this case.  It operates in two ways because it is of significance whether relocation is permitted or not.  As the Full Court made clear in McCall & Clark, there is no presumption either in favour of or against relocation.  If relocation is permitted, it will have an effect upon the nature of X’s relationship with his father, Ms J, his half-siblings and the extended paternal family.  The extent of this disruption is, of course, difficult to gauge in the abstract into the future.  The father’s case is that it will effectively sunder the relationship and make it meaningless, the mother’s case is that a relationship of good quality, if not of quantity, will subsist.  Both of these positions, in my view, somewhat overstate the matter.  I accept that the mother is not seeking to relocate to get away from the father or to spite him.  The desire to relocate is plainly sincere and I accept Dr L’s evidence that the mother is not embittered towards the father to the extent of seeking to end or prevent the relationship between the father and X.  I have already observed that she is still, at least in part, angry and embittered about what she perceives as his infidelity and his general conduct towards her, but I do not accept that the move to Country A is designed to break the relationship.  By the same token, however, the mother’s proposals face an obvious and significant difficulty.  X’s presently close relationship with his father will undoubtedly be diminished.

2. There is a further consideration which did not receive much play, if any, in the party’s submissions.  If X goes to live in Country A, he will be speaking Country A with his mother and her family.  He speaks Country A in his mother’s home now, and his extended family in Country A do not speak English.  He is only eight years old.  His command of English is likely to diminish over time in these circumstances.  He will be speaking Country A all day at school and he will be speaking every morning and evening at home. 

3. His father is likely, in my view, to become a somewhat distant figure, speaking in a language that X may well struggle to remain fully fluent in.  Furthermore, as Dr L conceded, X’s capacity to maintain and/or develop a relationship with his half-siblings will effectively be prevented.  The relatively brief (in the scheme of things) amounts of time the mother proposes for X to spend in his father’s presence will only compound these difficulties.

4. If relocation is not permitted, this subclause still has work to do.  The father seeks, perhaps albeit faintly, an equal time regime or in the alternative a 9/5 regime.  The mother appeared at one point almost to concede that the present 10/4 arrangement could become 9/5.  I do not think this is desirable.  One aspect to Dr L’s evidence (which I found uniformly impressive) was that X has been well-settled in this 10/4 arrangement for four years. 

5. In my opinion, this regime should stay in place.  It may yet be that as X gets older, he expresses a desire to spend more time with his father.  In my view, that is an issue for another day.  He has spent but little time away from his mother and I note that Dr L’s evidence was clear.  If he was to spend seven nights with his father, he would be likely to become distressed.  Distress was not the phrase that Dr L used, but this was the tenor of his evidence.

6. That evidence also needs to be borne in mind when considering the proposals for spending time if relocation is permitted.  It is unclear whether X would, in fact, thoroughly enjoy the more extended periods of time that the mother proposes that X be away from her, whether in Australia or in Country A.

Section 60CC(3)(e)

1. There are enormous practical difficulties in terms of expense and coordination in the event that relocation is permitted.  I note that the father has already offered to pay for two visits of four weeks each per year to Country A.  In the current economic climate, it might be thought that he would struggle to fulfil that obligation.  Nonetheless, he has made in the past an offer to educate X privately at K School.  His assertion that X may get a scholarship is, of course, wholly speculative. 

2. Given that he has made and repeated this offer, it is to be pre-supposed that he can more probably than otherwise, perhaps with family assistance, raise the in excess of $20,000 a year that would be required.  If relocation is permitted, plainly the costs of visiting Country A will be very significant for the father and/or the costs of bringing X to Australia.  Nonetheless, they are probably not in a different ballpark than the figures for sending X to K School. 

3. If relocation is not permitted, however, the cost of airfares twice a year to Country A would seem to be in the order of approximately $10,000, a figure well within the range that the father ought to be able to pay given the resources clearly available to him. 

Section 60CC(3)(f)

1. Each of these parents has the capacity to provide for X’s emotional and intellectual needs.  The mother is, on any view of the matter, a quite excellent parent and even the father, for all his meanness in spirit towards the mother, could not deny this.  The father is a great dad, for all his limitations.  X has already indicated a secure and established relationship with each of his parents.  Having seen her in the witness box and having formed extremely favourable view of her personality and evidence generally, I have no doubt that Ms J will provide further assistance to X in any event.  There seems no reason to doubt that the extended families on both sides are also well-equipped to further foster X’s well-being.

Section 60CC(3)(g)

1. X has been described by Dr L without contradiction as a robust, not overly sensitive child.  He is also, it would seem, quite delightful.  This in my view speaks both to his personal character and the affection that he has so self-evidently had from both sides of his family.  The mother’s personality struck me as being emotionally fragile.  She is plainly distressed by her circumstances in Australia.  It is appropriate at this point to deal with some aspects of the father’s case, even if they might perhaps be considered under some other sub-heading. 

2. Put shortly, it was the father’s case that the mother’s case was a tissue of lies from start to finish.  It was put, or at the very least insinuated, that the mother had exaggerated the state of her difficulties with her health and had connived with Ms F to exaggerate her diagnosis.  It was also put that her alleged job in Country A was in fact a sham, concocted with the assistance of her sister.  It was further put that the car she was to drive in Country A would either not be made available to her or was dangerous. 

3. It was finally put that the accommodation where she said she was going to live simply was not that portrayed in the photographs that she tendered of it and by implication, would not in fact be available for her to live in.  These aspects of the father’s case cannot be condemned too strongly.  They are utterly unfounded.  I have no doubt whatsoever that Ms F has correctly described her interaction with the mother and that a diagnosis of adjustment disorder is correct.  It should be noted that such conditions are amenable to treatment. 

4. Furthermore, I have no doubt whatsoever that the job offer in Country A is genuine.  The car is perfectly all right (60,000 kilometres is not that many).  The photographs of the proposed accommodation are not a sham, but represent where it is that the mother would live if she were to relocate.  The father’s desire to keep his son in Australia is, as Dr L described, desperate.  But he should not have condescended to these ignoble, unfounded and insulting allegations. 

5. Having made this clear, as I think it should be in the circumstances, it must be said that the mother was prone to a measure of exaggeration, and her personality struck me as being, to use a phrase – as somewhat florid.  I think that there is some measure of exaggeration in her presentation, but I think this is more probably just a matter of her personality than of any endeavour to deliberately misrepresent herself.

6. The father struck me as being mean-spirited.  I have commented on the unsatisfactory nature of his evidence.  I accept that his desperation to keep his child in Australia is born out of true love and affection for him, but it is to be viewed against the backdrop of the father’s controlling and unpleasant conduct. 

7. There is no getting round the texts he sent to the mother in which he was clearly seeking to use threats about childcare and money and/or other support to obtain more time with his child.  This is an unattractive feature of his personality.  Nonetheless, he is a great dad, and he appears to have had the good fortune to have made a relationship with a very self-possessed and sensible spouse.

Subsection 60CC(3)(h)

1. This is irrelevant. 

Subsection 60CC(3)(i)

1. The mother is a devoted mother with a perfectly attuned attitude to the responsibilities of parenthood.  Nonetheless, her desire to move to Country A, while of course readily understandable, in my view does not pay sufficient regard to the benefits of his relationship with his father and with the rest of the father’s family, including the half-siblings.  By the same token, the father’s attitude towards X is, in my view, somewhat possessory. 

2. His striving to obtain every last minute he can with the child, while understandable, of course at one level, springs from a sense of entitlement that emerges, in my view, fairly clearly from the materials taken as a whole and, in particular, the things the father said in his evidence and the way that he said them.

Subsection 60CC(3)(j)

1. There has been family violence within the extended definition in the section 4AB of the Act, but in my view correctly neither party have pressed these issues in their final submissions.

Section 60CC(3)(k)

1. As I understand it, there are still extant mutual orders between the parties, but once again, these matters have not received any significant emphasis during the proceeding.

Section 60CC(3)(l)

1. Everyone agrees that it is appropriate to make final orders.

Section 60CC(3)(m)

1. It is, perhaps, appropriate to pay some attention at this stage to what would occur if the mother was to return to Country A.  Her actual salary in Country A will not be that great.  She has asserted that the cost of living in Country A is substantially less than Australia, but there is no objective evidence to show whether this is correct or not.  She would, of course, have free accommodation and a car so that the entirety of her income could be directed to living expenses.  In my view, she would be likely to be better off financially in Country A, especially given that the father’s child support is likely to diminish as a result of the birth of his second child and very possibly, unfortunately, a possible diminution of income given the current economic downturn.

2. I should make it clear that I accept that on balance the mother’s financial position, which is a source of real and understandable ongoing concern for her, would be improved if she were to return to Country A.

Conclusion

1. A case like this is always going to be heart wrenching.  I observed, I fear, more than once during the currency of the case that whoever is unsuccessful is likely to be most bitterly disappointed.  Indeed, in the mother’s case I accept the evidence of Dr L that there may well be some risk to her capacity to function as a result of the very significant distress that not being allowed to relocate to Country A would involve.

2. There is no getting around it.  Dr L is correct.  It is a matter of weighing up whether the benefits involved in relocation, which are essentially the wellbeing of the mother (improved if in Country A, possibly to decline if in Australia) and the obvious possible effects on her care for X can be seen to be greater in X’s best interests than his remaining in Australia.

3. In this regard, it should be noted that the mother has in fact lived in Australia for the past eight years.  She has been able to return to Country A frequently.  She has coped, at least at times, in Australia and this was, in fact, her position in the 2016 proceedings.  The father’s dismissive remark that she should just get on with it can of course, and should, be just put aside.  Nonetheless, and to her credit, the mother has at least thus far been able to cope, notwithstanding that I accept her health is not good.  Once again, I reject the criticisms made of her in this regard.

4. While the mother’s position, should she remain in Australia, is perhaps not wholly clear, what is clear is what will happen if relocation is permitted.  If the mother relocates to Country A, that there is no doubt that X’s relationship with his father will significantly alter.  In my view, it will not alter for the best.  He will see his father only once or perhaps up to three times per year, and these will be for more extended periods of time.  Nonetheless, the difference between seeing your father approximately once or twice a year and seeing him every alternate weekend for a block of time is immediately obvious.  Furthermore, X will not develop the relationship with his half-siblings.

5. I have given careful and earnest thought to all of the relevant considerations as I have endeavoured to describe them above.  It needs to be borne steadily and irrevocably in mind that it is X’s best interests with which the Court is concerned.  In my view, the certainty of the disruption to X’s relationship with his father and the father’s family outweighs the admitted benefits to the mother of permitting relocation to take place.

6. Any endeavour to spell out in percentage or weight terms, in my view, is likely to only confuse what in the ultimate is a value judgment that has to be made by the Court.  As I say, I have given earnest consideration to each and every one of the relevant considerations.

7. I confess that on a purely intuitive level, my sympathies lie with the mother.  She is in a very difficult place, confronted by a former partner whose denigration of her both before and particularly during this proceeding must be deeply distasteful and distressing to her.  Nonetheless, this case is to be decided by reference to the statutory pathway and bearing in mind the objects set out in the legislation.  In the end, it is my opinion that X’s best interests will be met by his remaining in Australia where he has lived all the life that he can remember, and enjoying an ongoing and close relationship with each of his parents.

8. That, of course, is not the end of the matter.  There are competing proposals.  As I have indicated, however, and for the reasons already expressed, I think that the 10/4 arrangement should continue unless the mother’s concession about 9/5, which I think was obtained following sustained cross-examination – is one to which she is still prepared to accede.

9. Next, there is the question of the name. This is first and last about X’s interests. I note Dr L’s evidence that it will be of no moment to X at the present time. It will, however, be of moment to his primary carer. It will clearly give her some comfort if X has her name as well as that of the father. His insistence on excluding the surname “Napier” is consistent with his tendency to control behaviour as the mother sees it. It will plainly, even if in small measure, reassure the mother if X’s name is changed to X Napier-Malpass and anything that may assist the mother’s wellbeing, as I have no doubt the change of name will, is clearly in X’s best interests.

10. Finally, I have noted the father’s offer to fund twice yearly visits to Country A. I have also noted the mother’s view that this often will fall away once the proceeding is over. This has been a finely balanced matter and the father’s offer has played a significant part in my conclusion. Any withdrawal of that offer might well be thought to shield the mother from the operation of the rule in Rice v Asplund (1979) FLC 90-725.

11. I have drawn draft orders to reflect these conclusions and will hear from the parties further in the light of the matters just expressed.

I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 3 April 2020