Needham & Shao (No 4)
[2023] FedCFamC1F 862
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Needham & Shao (No 4) [2023] FedCFamC1F 862
File number(s): SYC 5643 of 2020 Judgment of: ALTOBELLI J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – PARENTING – International relocation – Where the mother seeks to relocate to the United States of America (“USA”) with the child – Where the father opposes the relocation application – Where there are allegations of family violence against the father – Where there are credibility issues with the mother’s evidence – Where the mother must return to the USA upon expiration of her visa – Where the Court finds it is in the best interests of the child to live with the father in Australia.
FAMILY LAW – PROPERTY – Where the mother seeks a lump sum payment from the father – Where the father opposes this application – Where the father seeks for spousal maintenance to be discharged – Where the father made greater financial contributions – Where there is an adjustment in favour of the mother for future needs.
Legislation: Australian Constitution s 92
Family Law Act 1975 (Cth)ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79
Family Law Regulations 1984 (Cth) reg 24
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children which is implemented into Australian family law by the Family Law (Child Protection Convention) Regulations 2003
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Carlson & Fluvium [2012] FamCA 32
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Chorn v Hopkins (2004) FLC 93 204; [2004] FamCA 633
F v M [2021] EWFC 4
Franklyn & Franklyn [2019] FamCAFC 256
Helbig & Rowe and Ors [2016] FamCAFC 117
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Illgen & Yike [2018] FamCA 17
In the Marriage of Quinn (1979) FLC 90-677; [1979] FamCA 86
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Needham & Shao (No 3) [2023] FedCFamC1F 388
Ramzi & Moussa [2022] FedCFamC2F 1473
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Suffolk v Suffolk [2007] FamCA 797
Taylor v Barker (2007) FLC 93-345; [2007] FamCA1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 223 Date of last submission/s: 11 October 2023 Date of hearing: 7–11 June 2021; 31 July 2023–3 August 2023 Place: Sydney Counsel for the Applicant: Ms Lewer Solicitor for the Applicant: Jwp Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Swifte Law Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5643 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NEEDHAM
Applicant
AND: MS SHAO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
Parenting
Parental responsibility
1.The Applicant father (“the father”) have sole parental responsibility for the child, X born 2019 (“the child”).
2.Prior to making any decision as to the long-term care, welfare and development of the child:
(a)The father shall advise the Respondent mother (“the mother”) 14 days prior to making such decision including providing any documentation in respect of such decision; and
(b)The mother shall provide her views as to the issue to be decided within seven days of receipt of this information.
Living and time arrangements
3.The child live with the father commencing from 10.00 am on Monday 16 October 2023.
4.The mother will do all things necessary to deliver the child into the father’s care at 10.00 am on Monday 16 October 2023 at B Shop, C Street, Suburb D.
5.A recovery order for the return of the child to the father shall be issued to lie in the Sydney Registry.
6.The Independent Children’s Lawyer shall notify my chambers via email to …@... after 12 noon if the child is not delivered to the father in accordance with Order 4.
7.In the event the child is not delivered in accordance with Order 4 and notification as described in Order 6 is received by my chambers, the recovery order in Order 5 shall be activated.
8.Unless the parents otherwise agree, for the first twelve months following the making of these orders, and upon the mother providing 42 days’ notice in writing to the father of her intention to spend time with the child, the mother will spend time with the child in Australia for two-week blocks on up to four occasions as follows:
(a)For the first five days from 9.00 am to 5.00 pm;
(b)From 9.00 am on the sixth day to 5.00 pm on the seventh day (one night);
(c)From 9.00 am on the eighth day to 5.00 pm on the tenth day (two nights);
(d)From 9.00 am on the eleventh day to 5.00 pm on the fourteenth day (three nights).
9.Upon the expiration of Order 8, the mother is to spend block time with the child for:
(a)Each of the July school holidays, from the day after students are required to attend school to the day before children are required to return to school;
(b)Either of the April or September school holidays from the day after students are required to attend school to the day before children are required to return to school, with the mother to nominate on 1 January in each year which of either the April or September school holidays she will spend time with the child; and
(c)The first half of the Christmas holiday period in even-numbered years commencing at the end of 2024, and for the second half of the Christmas holiday period in odd-numbered years commencing at the end of 2025.
10.Upon the expiration of Order 8 and until the child reaches six years of age, one occasion per calendar year referred to in Order 9 can occur in the United States of America (“the USA”) or another country who is signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
11.Upon the child reaching six years of age, two occasions per calendar year referred to in Order 9 can occur in the USA or another country who is signatory to the Hague Convention.
12.Upon the child reaching eight years of age, any of the occasions referred to in Order 9 can occur in the USA or another country who is signatory to the Hague Convention.
13.Upon the expiration of Order 8 and after providing the father with 42 days’ notice, the mother may spend time with the child for up to two periods of 14 days per year in Sydney during school terms, with no more than 14 days during one school term, provided that the child continues with his normal daycare or schooling routine.
Changeover
14.Where changeover is to occur in Australia:
(a)If it is a school/day care day it will occur at school or day care; and
(b)If it is a non-school/day care day it will occur at a location agreed between the parties, or otherwise inside the premises of B Shop, C Street, Suburb D save for days when the premises are closed and in that event, changeovers are to occur inside McDonald’s, C Street, Suburb F.
15.Where changeover is to occur outside of Australia:
(a)It shall occur at City BB Airport, or another agreed airport;
(b)Until the child reaches the age of 13, he is to be accompanied by a parent or their nominee; and
(c)After the child reaches the age of 13 he may travel using an unaccompanied minor’s service.
16.Provided that a parent has given 24 hour’s prior notice to the other parent, a third party may accompany that parent, or attend changeover alone if known to the child, for the purposes of facilitating changeover.
Travel costs
17.Within 28 days of these orders and thereafter on 1 March each year until the child reaches the age of 13, the father is to deposit $5,000 into a bank account nominated by the mother for the sole purpose of enabling her to use such funds towards the costs of the child or the mother’s travel which shall include reasonable airfares and accommodation.
18.Upon the child reaching the age of 13 each party shall be solely responsible for their own travel costs and shall be equally responsible for the child’s travel costs.
Airport Watchlist order and passports
19.Once the child has come into the care of the father pursuant to these orders, the Child, X DOB 2019, be permitted to travel overseas, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the said Child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
20.Both parties shall sign all documents and applications necessary for the child to obtain or renew an Australian passport.
21.Both parties are restrained from applying for any other passport in the name of the child.
22.The father shall ensure that the child’s passport is always valid and up to date.
23.The father shall retain the child’s passport unless the child is travelling to spend time with the mother, but shall produce the same to the mother within seven days of intended travel.
24.The mother is to retain the passport whilst in the USA but return it with the child within seven days of return to Australia.
Communication, authorities and restraints
25.The parents will do all things necessary to enable and facilitate the non-live with parent to communicate with the child each Monday, Wednesday and Saturday at a time agreed between the parties or failing agreement between 8.00 am and 8.30 am in the country the child is residing in.
26.The above communication is to occur via FaceTime, telephone or such other “app” as utilised by the parties.
27.The parents will do all things necessary to enable and facilitate the child to have additional communication with the non-live with parent on special occasions as agreed between the parties or otherwise between 8:00 am and 8.30 am in the country the child is residing in including the child’s birthday, the non-live with parent’s birthday, any sibling’s birthdays, Christmas day, Easter Sunday, and Mother’s and Father’s Day.
28.Each party is to advise the other of their current contact details, including phone number, email address and address, and advise of any change to these details within 24 hours of this occurring.
29.The parties shall communicate with each other about the child by WhatsApp or another agreed mobile phone application, except in emergencies when communication shall be via telephone.
30.Each parent is to use their best endeavours to keep the other informed of the following while the child is in either of their care:
(a)Any medical problems or illnesses suffered by the child;
(b)Any medical appointments attended with the General Practitioner whilst in their care and within four hours of such appointment;
(c)Any specialist appointments scheduled for the child by either party within four hours of scheduling such appointment, including the name of the specialist, their area of speciality, the time, date and address of the professional rooms where the appointment will occur;
(d)Any medication that has been prescribed for the child including the regime for the provision of the medication;
(e)Any special dietary requirements of the child as recommended by a treating medical professional;
(f)Any enrolment at any preschool or day care; and
(g)Any social, school, or religious functions which the child may attend from time to time.
31.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable and within one hour of the medical emergency occurring;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable and within one hour of the medical emergency occurring; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
32.Each parent is authorised to contact and speak to the child’s treating medical professional or school to obtain information and reports.
33.The live-with parent will ensure that the non-live with parent is listed as an emergency contact and next of kin at the child’s day care or school and all health care providers.
34.The child shall be known as “X” and both parties are restrained from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages, or the equivalent body in any state of the USA.
Overseas enforcement
35.Within 21 days of the mother requesting the father to do so, or within 21 days of an entity in the USA advising the mother that it is necessary that she do so in order to effect these orders, the parties shall do all acts and things, sign all documents, and commence such process as may be necessary to:
(a)Submit to the jurisdiction of State CC, USA; and
(b)Obtain from a court of competent jurisdiction in State CC, USA recognition of these parenting orders in the USA; or
(c)Obtain from a court of competent jurisdiction in State CC, USA a declaration of the enforceability of these parenting orders in the USA; or
(d)Register and/or record a copy of these parenting orders in a court of competent jurisdiction in State CC, USA; or
(e)Obtain reciprocal parenting orders from a court of competent jurisdiction in State CC, USA.
Costs of the Independent Children’s Lawyer
36.Within 60 days of the date of these orders, unless a waiver has been granted by the Legal Aid Commission of New South Wales (“Legal Aid NSW”), each party shall pay the sum of $12,342 to Legal Aid NSW.
Property
37.The father will pay the sum of $42,000 to the mother, which is to be paid to the mother into a bank account nominated by her in the following manner:
(a)$10,000 to be paid on 13 January 2024; and
(b)$10,000 to be paid three calendar months thereafter; and
(c)$10,000 to be paid three calendar months thereafter; and
(d)$12,000 to be paid three calendar months thereafter.
Failing which interest will accrue on the said sum in accordance with the Family Law Act 1975 (Cth), its Rules and Regulations, calculated from 28 days from the date of the late payment.
38.The order for spousal maintenance in Order 3 made on 19 May 2023 will stand discharged as at the date the child comes into the care of the father pursuant to these orders.
39.As between the parties and subject to the above order herein, the father and the mother will each respectively retain all interest in and entitlements to all of their property and entitlements in their possession, power or control, including their superannuation, as at the date of these orders.
40.All previous orders are hereby discharged, excluding the Family Law Watchlist order in Order 10 of the orders made on 1 September 2021, which is not to be discharged until the child is in the father’s care.
41.Any future application that may be filed by either party in relation to the child is to first be listed before Justice Altobelli if he is reasonably available and subject to the right of each party to seek his Honour’s recusal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Needham & Shao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about a child, X, who was born in 2019 in Sydney (“the child”). Almost immediately after the child’s birth, and whilst he and his mother, the respondent in this matter (“the mother”), were still in hospital, the mother and the applicant father (“the father”) had their first major conflict about the child regarding breastfeeding. The child is now four years old and for the entirety of his life his parents have been involved in a seemingly intractable conflict about him.
These reasons for judgment explain the orders that the Court has made about where the child should live and what time he should spend with his parents. The mother wants to relocate with the child back to her home in City DD in the United States of America (“the USA”). The father wants him to remain in Australia. There was also a dispute about the alteration of property interests in the form of a lump sum.
BACKGROUND
The father is the applicant in this case. He is 45 years old and is a professional. The mother is the respondent. She is 36 years old and is currently unemployed, however she holds a tertiary qualification from EE University and another tertiary qualification from FF University. The parties met in 2018, commenced cohabitation in 2019 and married in 2019. The parties separated in mid-2020 when the child was less than one year old and divorced in 2021. The parties have only one child. Pursuant to interim orders made on 6 August 2021 (and varied on 11 November 2022), the child currently lives with the mother and spends time with the father every weekend from 8.00 am on Saturday to 4.00 pm on Sunday, as well as additional time on special occasions, and communicates via a FaceTime call each Wednesday between 5.00 pm and 5.30 pm. On three occasions before the final hearing (17 January 2022, 11 November 2022 and 19 May 2023) I declined to vary these orders, save for a change in the time and a reduction in the frequency of FaceTime calls, due to my concerns about the parental conflict. The father has re-partnered, and he lives with that partner and they have one child together. The new partner’s name is Ms K and she is 34 years old, and their child’s name is GG who is one year old.
The father is an Australian citizen and lives in Sydney. The mother moved to Australia on a student visa in 2018 and is a citizen of the USA. She is currently on a temporary visa which expires in late 2023, and she has consistently contended that she will need to leave Australia on this date. By the time the evidence had closed the mother’s position was unequivocal – she would leave Australia with or without the child in September 2023, but if not, by no later than the visa expiration date, and irrespective of whether these reasons for judgment have been delivered and orders made. The child is a citizen of both Australia and the USA but does not currently have a passport for either country.
This matter was part-heard and first came before me for final hearing on 7 June 2021 for five days. It was listed to recommence on 4 October 2022, but was vacated on 29 September 2022 due to an oral application by the mother which was not opposed by the father. The matter was then listed to recommence on 31 January 2023, however this date was also vacated due to an oral application by the mother which was not opposed by the father, in circumstances where the mother’s solicitor and barrister were no longer available.
There were also three interim hearings between the conclusion of the 2021 final hearing and the commencement of the 2023 final hearing.
On 13 October 2023 there was an interim hearing relating to the father’s Application in a Proceeding filed 22 December 2021, where he sought orders relating to his time with the child, childcare arrangements, FaceTime calls, and medical appointments. Consequently, on 11 November 2022 orders were made in line with the father’s proposal that FaceTime calls between the father and the child occur each Wednesday between 5.00 pm and 5.30 pm (rather than three mornings per week as outlined in the orders of 6 August 2021), and I otherwise dismissed all outstanding interim applications.
On 24 April 2023 and 8 May 2023 there was an interim hearing regarding the mother’s Application in a Proceeding filed 10 March 2023, where she sought for the father’s barrister to be restrained from appearing, for the child’s time with the father to be reduced and supervised, and an order for spousal maintenance. In her affidavit filed 10 March 2023, the mother alleged, among other things, that the child disclosed that the father grabbed him, threw him into a door, punched him in the tummy and kicked him in the leg. On 24 April 2023 orders were made restraining the father’s barrister from representing the father in any further proceedings, and on 19 May 2023 a spousal maintenance order was made and all other parenting orders dismissed. In my reasons for judgment dated 19 May 2023 I indicated that the Court was satisfied there was no further risk of harm to the child that warranted either supervised time or the dramatic reduction in time with the father that the mother sought (Needham & Shao (No 3) [2023] FedCFamC1F 388). At [25]–[26] I found that there was a lack of evidence to substantiate the mother’s allegations, and that the mother failed to consider any other plausible alternative explanation for what the child had told her. I note that at paragraph 75 of the mother’s trial affidavit filed 21 July 2023, she explains “[a]s the Court found that there was no unacceptable risk to [the child] based on the evidence in my Affidavit on 10 March 2023 I do not intend to consolidate that evidence into this Consolidated Updating Trial Affidavit”. Although, her most recent affidavit filed 6 October 2023 indicates that she no longer adopts this position.
This matter recommenced before me on 31 July 2023 for four days. Both parties were represented by counsel.
An important dynamic in this case needs to be recognised. This long-running, intense and intractable litigation has created great anxiety for both parents and the Court will find, consistent with the evidence of the single joint expert Mr S, that this anxiety is inexorably, but probably inadvertently, transmitted to the child. Having regard to the mother’s stated intention to return to the USA in late 2023, and also what the Court considers to have been the parties’ at least tacit expectation that this Court will try to make orders and deliver reasons before then, it is inevitable that this anxiety is building to a crescendo. The more recent events referred to in these reasons for judgment will need to at least consider this dynamic.
THE COMPETING PROPOSALS
The father’s proposed Minute of Order was received on 28 July 2023. The father seeks for all previous parenting orders to be discharged. In the event that the child remains in Australia, he seeks to have sole parental responsibility for the child (but consult the mother regarding major long-term issues), for the child to live with him and spend time with the mother for block periods during school terms and holidays. The father proposes to deposit $5,000 into the mother’s bank account within 28 days of these orders for the purpose of the mother or the child’s travel, and thereafter to deposit $5,000 on 1 March each year until the child turns 13 years of age. He proposes opposite orders if the mother is permitted to relocate with the child; that is, for the mother to have sole parental responsibility, for the child to live with her and to spend block time with the father during school terms and holidays, with each party to equally pay for the child’s travel costs. The father also seeks for both parents to be entitled to attend all events involving the child, and that each parent keep the other informed about all medical appointments and health issues regarding the child, that the mother be prohibited from changing the child’s last name or travelling with the child to a non-Hague Convention country, and further orders regarding communication. In terms of property, the father seeks for the mother’s application to be dismissed, for the current spousal maintenance order to be dismissed, and for the mother to return certain items of property.
The mother also seeks for all previous parenting orders to be discharged, to have sole parental responsibility for the child (with provisions to consult the father), for the child to live with her, and to be permitted to relocate with the child to City DD, State CC in the USA. In her Minute of Order received on 28 July 2023 she sets out in great detail how the child is to spend time with the father both in the USA and Australia, including building up to blocks of time during school holidays and additional communication on special occasions. She proposes that the father will be solely responsible for the cost of his own and the child’s travel, and until she is employed and in receipt of the equivalent of $90,000 AUD, he will also be responsible for the travel costs of herself and the maternal grandmother (e.g. when they spend time with the child in Sydney). The mother also sets out an alternate proposal should she not be permitted to relocate, with the child to live with the father and spend time with her in the USA for block periods during school holidays. She also seeks various orders relating to the child such as obtaining and renewing the child’s passport, being permitted to change the child’s name, and ensuring the reciprocity of any Australian orders in the USA. In terms of property, the mother seeks for the father to pay her a lump sum of $300,000 (with a provision for the father to sell his home in Suburb HH if he is unable to pay) and that the parties otherwise retain their own assets and liabilities and forgive all loans from one to the other.
In the Minute of Order received on 4 August 2023, the Independent Children’s Lawyer provides two alternate proposals. Firstly, if the mother remains living in Sydney, the child is to live with her and she is to have sole parental responsibility for the child. The child is to spend gradually increasing time with the father starting with alternate weekends and one alternate weekday afternoon, to week-about time once he reaches seven years old. Alternatively, if the mother relocates to the USA, the Independent Children’s Lawyer proposes that the child live with the father and that he is to have sole parental responsibility for the child. For the first 12 months the mother is to spend time with the child in Australia with blocks of daytime increasing to include blocks of overnight time. After 12 months, the time will include blocks of time in the school holidays, and from the age of five some of the child’s time with the mother can occur in the USA. There are additional provisions for communication, changeover, therapy, passports and the costs of travel. Each of these minutes of orders are reproduced in the schedule to these reasons for judgment.
THE EVIDENCE BEFORE THE COURT
In support of his case, the father relies upon the following material:
(a)Case outline filed 30 July 2023;
(b)Case outline filed 4 June 2021;
(c)Amended Initiating Application filed 28 July 2023;
(d)His affidavit filed 27 July 2023;
(e)His affidavit filed 28 May 2021;
(f)Affidavit of Ms K filed 19 September 2022;
(g)Affidavit of Ms K filed 28 May 2021;
(h)Affidavit of Ms JJ filed 25 January 2023;
(i)Affidavit of Mr P filed 28 May 2021;
(j)Financial Statement filed 28 July 2023;
(k)Written submissions received 11 October 2023;
(l)His affidavit filed 10 October 2023; and
(m)Various documents tendered during the proceedings, marked as Exhibits A1–A119.
In support of her case, the mother relies upon the following material:
(a)Case outline filed 25 July 2023;
(b)Case outline filed 4 June 2021;
(c)Further Further Amended Response to Initiating Application filed 21 July 2023;
(d)Her affidavit filed 21 July 2023;
(e)Her affidavit filed 27 May 2021;
(f)Notice of Risk dated 1 September 2020;
(g)Affidavit of Mr H filed 1 June 2021;
(h)Affidavit of Ms Q filed 25 July 2023;
(i)Affidavit of Ms Q filed 31 May 2021;
(j)Financial Statement filed 21 July 2023;
(k)Written submissions filed 10 October 2023;
(l)Her affidavit filed 6 October 2023; and
(m)Various documents tendered during the proceedings, marked as Exhibits R1–R20.
In support of their case, the Independent Children’s Lawyer relied upon the following material:
(a)Case outline filed 31 July 2023;
(b)Single Expert Report of Mr S dated 7 April 2021;
(a)Updated Report of Mr S dated 10 July 2023; and
(b)Various documents tendered during the proceedings, marked as Exhibits ICL–ICL2.
Following the proceedings, the Court tendered one document:
(a)COPS entry dated mid-2022, marked as Exhibit C1.
Those required for cross-examination included the father, the mother, the paternal grandfather Mr N, the father’s partner Ms K, the father’s friend Ms JJ, and the maternal grandmother Ms Q (“the maternal grandmother”). The joint single expert, Mr S, was also cross-examined, both in June 2021 and August 2023.
The father relies on the affidavit of his brother, Mr P, filed 28 May 2021, although he was not required for cross-examination. The mother relies on the affidavit of immigration specialist Mr H filed 1 June 2021, and he was also not required for cross-examination.
THE PARENTING PROCEEDINGS
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(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 or 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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the the Act. However, these words are not defined in the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ and Campton J in Carter & Wilson [2023] FedCFamC1A 9 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary depending on the context (Carter & Wilson at [71]). Therefore findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Relocation cases are not a separate category of parenting cases. Nor is relocation treated as a discrete issue. Rather, the preferred approach is to regard it, where possible, “as just one of the proposals for the child’s future living arrangements” (Taylor v Barker (2007) FLC 93-345 at [53]). The Court is not bound by the proposals of the parties (U v U (2002) 211 CLR 238 at [80]) (“U v U”). The best interests principle remains the paramount consideration in the determination of relocation applications and the standard legislative pathway applies (Sayer & Radcliffe (2012) 48 Fam LR 298).
The Court recognises that each party is entitled to live where they choose without the need to provide “compelling reasons” (AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at [191]) but such right of freedom to mobility must ultimately defer to the paramount consideration (U v U at [89]). The interaction between these principles was described by Full Court in Franklyn & Franklyn [2019] FamCAFC 256 at [27]–[28] as follows:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
The above cases, and other High Court cases, do not suggest that freedom of movement is an implied right in the Australian Constitution (“the Constitution”). Further, there is also no Commonwealth legislation enshrining the right to freedom of movement. It has been referred to as a common law right, but this can be limited by legislation (Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Report, 2016) 129, Ch 7 Freedom of Movement, p. 189–218). Section 92 of the Constitution has been discussed as guaranteeing freedom of movement, but only within States of Australia (for example, AMS v AIG).
Nevertheless, some interesting comments have been made regarding this area of law. For example, Kirby J in AMS v AIG observed that:
[111] Behind the constitutional and other legal arguments of the parties lies a difficult problem. It is one which arises in every jurisdiction where relocation cases have been considered. The problem stems from important values which the law upholds and which sometimes come into conflict. On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.
…
[144] … a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
Issues in this case
A number of important issues arise in this case including:
(1)As the evidence of the mother and the father is so diametrically opposed on so many important issues credit findings become necessary;
(2)What is the immigration status of the mother? Was her contention that she was required to return to the USA in late 2023 sustained on the evidence before the Court?
(3)Has there been coercive and controlling family violence as contended by the mother but denied by the father? If so, what impact has that had on the mother and the child? What is the relevance of this to the decision the Court must make?
(4)Whether there is the need to protect the child from any form of harm in the care of the father as a result of his exposure to family violence;
(5)The extent to which a parent has taken, or failed to take the opportunity to participate in decision-making in relation to the child, or to spend time, or to communicate with the child;
(6)The likely effect on the child of the inevitable changes that he will experience in his life as a result of the proposals that both parents make, particularly in terms of his separation from a parent;
(7)The issues of practical difficulty and expense of the child spending time and communicating with either parent having regard to the proposals that both make, and whether this will substantially affect the child’s right to maintain relationships and contact with both parents on a regular basis;
(8)The capacity of each parent to provide for the emotional needs of the child, in this case to have a relationship with the other parent;
(9)The attitudes of the parents to the child, and to the responsibilities of parenthood, as demonstrated in the evidence;
(10)The impact of any family violence involving the child or the parents, and in particular whether the mother was traumatised and continues to be traumatised by the said family violence;
(11)The capacity and willingness of the parents to comply with orders of the Court; and
(12)Other issues that arise from the above.
Credit and related issues
The Court is very conscious of the comments made by Kent J in Carlson & Fluvium [2012] FamCA 32, and affirmed by the Full Court in Sahrawi & Hadrami (2018) FLC 93-857:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
It is regrettable that credit findings need to be made in this case, but it is necessary in order to adjudicate on the issues that the parties themselves brought before the Court. On so many of the most important issues their evidence was diametrically opposed. The disposition of the case cannot legitimately be achieved without making these credit findings.
Moreover, the Court acknowledges that factual findings that may be characterised as credit findings, are also highly relevant considerations in other respects. In this case, for example, the findings provide an insight into parental attitudes, and parenting capacity.
It is important to record that these findings are made having accepted the evidence of the single joint expert, Mr S, that the mother was fearful of the father, and was anxious. The Court will consider (but ultimately reject) the possibility that the mother’s credibility was adversely affected by any trauma that she may have experienced during the relationship. Even when her evidence is viewed through this lens, the Court remains deeply concerned about the mother’s credibility.
The Court has reluctantly concluded after carefully considering all the evidence that the father is a better historian of past events than the mother. Of course, it does not necessarily mean that either parent was dishonest because their historical recall was poor. It does mean, however, that the evidence of the poor historian needs to be more closely scrutinised and compared to the more objective and reliable evidence pertaining to the same issue or events.
The mother was much more inclined to present her evidence from the perspective of self‑interest and achieving the goal she wanted than the father was. Mr S called this confirmation bias. In other words, the mother was prone to allow her confirmation bias to alter her recollection and perspective on events.
For example, the mother was cross-examined about an event when the child was hospitalised after an injury from a fall in early 2021. She responded “I don’t know” when asked whether she accepted the injury was an accident (Transcript of 10 June 2021 p. 45 lines 1–2). When counsel asked “Even though you’ve seen [the father’s] sworn evidence, his affidavit, you still say that there’s a doubt in your mind about whether or not the account he has given is correct or not?” (that is, whether there was a possibility that the injury was intentional) the mother responded “maybe” (Transcript of 10 June 2021, p. 45 lines 12–42). When asked to clarify why she thought this, the mother answered “Because the bruising or lack of on [the child] doesn’t seem consistent with the accident that he has described” (Transcript of 10 June 2021, p. 46 lines 19–20). Following this incident, the mother agreed that she refused to provide the child the next weekend because the child was “unwell”. She also refused to provide the child the following weekend because he “remained unwell for a while” (Transcript of 10 June 2021 p. 53 lines 4–13). She later clarified “It took him some time to recover from the surgery and the sutures had not yet come out and I thought it best he stay home until the sutures were out so that we knew it was fully healed”. She added that “he got a fever from I’m not sure what” and was lethargic and lost his appetite (Transcript of 10 June 2021, p. 55 lines 29–46).
The mother agreed in cross-examination that she did not see the local doctor at any point after the injury until over two weeks later. It was suggested to her that if the child was so sick that he could not see the father for two weeks, she would have taken him to the doctor. She disagreed. The mother also disagreed that she withheld the child because she did not want him spending time with the father, but agreed that after the accident she insisted that time be supervised, and that supervised time did not start until 20 February 2021. The mother said “I was very, very scared and concerned for [the child] and I thought it would be best if we could have supervision so that we could continue the visits but make sure that [the child] is safe and still ensure that he sees his dad” (Transcript of 10 June 2021 p. 57 lines 31–33). She agreed that she felt the child was at risk in the father’s care, that is, a risk of “an accident” or “a harm”, but said she could not speak to whether this would be intentional (Transcript of 10 June 2021 p. 57 lines 35–46).
Similarly, the mother squarely blamed the father for the child developing a fungal groin infection (which she says was caused by infrequent nappy changing) and catching a cold/becoming sick (which she says developed after swimming), dismissing any other possible causes. When discussing an insect bite on the child’s foot which became swollen and infected, the father’s counsel put to the mother “So you say to his Honour he went with a bite on his foot and I now infer when he came back to me that because it was bigger that for a full five hours the child was in pain and the father didn’t notice?” and she said “yes” (Transcript of 10 June 2021, p. 87 lines 15–17), implying that the father inadequately cared for the child.
Of a similar nature, there was an incident involving the mother’s niece, AA, who, along with the maternal grandmother, visited the parties from the USA and resided with them in late 2019. On one occasion AA came home in boys’ underwear because she had wet her pants after being in the father’s care, and the mother implied that something untoward could have happened and that “a number of negative experiences…could have caused her stress” (Transcript of 11 June 2021, p 50 lines 17–33).
In relation to family violence, the learned Magistrate at the Apprehended Domestic Violence Order (“AVO”) hearing in early 2021 said that the version of evidence that the mother gave about the incident leading to the AVO was different to what the video evidence showed, and that on the balance of probabilities it was unlikely that the mother had any fear of intimidation, stalking or domestic violence (Exhibit A119).
Further, there was an incident where the mother says the father forcefully drove the stroller into her shin in mid-2022, and the police said that the CCTV footage shows the event differently to how the mother described, and they did not proceed with the complaint. The relevant COPS entry for this incident (Exhibit C1) states that:
The Statement provided by the victim is vague and does not provide police with proof of the POI intending to hit her with the stroller on purpose. Police contacted [Suburb F] McDonald's and secured CCTV footage of the incident. The footage shows a short interaction between both parties. The POI has then wheeled the pram up the ram which has made contact with the victim's shin. The POI does not appear to forcefully push the pram causing it to collide with the victim. The POI has left the pram with the victim and walked towards the exit facing [KK Street, Suburb F]…With the information currently at hand, police do not have sufficient evidence to proceed criminally.
The above incidents demonstrate how the mother often had an altered perspective or perception of events. Every event, whether innocuous or capable of another reasonable alternate explanation, were interpreted through the mother’s strongly held belief that the father presented a risk of harm to the child. Every event merely confirmed this bias, and no plausible alternate hypothesis would convince the mother to the contrary. She totally lacked confidence in the father’s ability to care for the child. The Court notes that the mother did not mention these events in any of her filed Notices of Risk. However, the Court acknowledges that in her Notice of Risk filed 1 September 2020 she did allege that the father had yelled at her, harassed her and intimidated her, that he struck the child whilst he was held by the mother, that he was unable to control his anger, and that he was coercively controlling. Moreover, in her Notice of Risk filed 10 March 2023 in connection with her Application in a Proceeding filed on the same date, she alleged that the father may be an alcoholic, that he has difficulty controlling his anger, and that the child disclosed the father punched him in the tummy, kicked him in the leg and grabbed him.
The manner in which the parents presented their evidence was significantly different. For the most part the father gave his evidence confidently, clearly, responsively, consistently and with little hesitation. He demonstrated a willingness to make concessions and manifested the capacity to reflect on his past behaviour with a refreshing degree of insight. He showed a capacity to identify and acknowledge his flaws as a parent.
A few examples will suffice. When the father was cross-examined about his behaviour at changeover, he responded “I don’t think it’s ideal, yes. I think it would be nice if [the mother] and I could great each other…” (Transcript of 31 July 2023, p. 11 lines 23–24). When asked whether he accepted that his engagement with the mother during FaceTime calls was not child focused the father responded “…yes, I accept it wasn’t sufficiently appreciative at the time of [the child]” (Transcript of 31 July 2023 p. 18 lines 10–11). When it was put to the father that his position is that he tries to de-escalate the conflict between himself and the mother he said “Well, I’m not saying I’m perfect or blameless, but I am really trying to do everything I can, yes” (Transcript of 1 August 2023, p. 41 lines 26–27). When asked whether he swears in front of the child, he said “Look, as recently as Saturday, I think I dropped something and said “shit” in front of [the child]… I can’t deny that I’ve sworn in front of [the child]” (Transcript of 31 July 2023, p. 41 lines 1–4). Finally, when the father was asked how he is going to deal with the child’s stress if the mother relocates to the USA and the child lives with him, he said “I don’t think I’m going to be able to completely mitigate that, but you know, the things that I’ve been thinking about are being as encouraging with him as possible about his mum” (Transcript of 1 August 2023, p. 58 lines 41–43).
By contrast, the mother gave her evidence in a manner suggestive of lack of confidence. She frequently hesitated before answering questions. She was often unresponsive and had to be reminded that she was obliged to answer the question that was asked, and not to make speeches. Her evidence was occasionally inconsistent. She rarely made a concession in cross‑examination. She did not manifest the capacity to reflect on her past behaviour with any degree of insight. The mother’s evidence, and the way she presented it, was very much focused on the goal that she wanted to achieve. The Court has again considered, but rejected, the possibility that the way the mother gave her evidence is explicable by reference to her experience of trauma in the relationship.
The mother did not accept that there is any possibility that her observations about the child might not be accurate or that she is attributing more significance to the child’s behaviour than warranted. She also said she can look at the child’s behaviour objectively and that she does not think she has bias. She blamed the father and did not accept any alternative explanations for changes in the child’s behaviour, for example treating a pet poorly, swearing, pinching, and biting. Further, the mother denied having ever been deliberately antagonistic or confrontational on any occasion at changeover, or that any of her communication has ever been antagonistic or confrontational, when the evidence indicates that this is not entirely true. When it was put to the mother “do you think that communication [since June 2021] has been done in the best way it could be done?” she responded “yes” (Transcript of 1 August 2023, p. 95 lines 37–38). This is a curious belief given that Mr S has described the parties’ interactions as “tense”, “awkward”, “uncomfortable”, “perfunctory at best” and “hopeless” (Transcript of 2 August 2023, p. 127 line 30 to p. 128 line 1). Further, the mother implied that when the father videos her it is threatening and harassing, but when she videos him it is acceptable, for example because “I can make him behave in a way that isn’t frightening to me” (Transcript of 9 June 2021, p. 11 lines 33–34).
The mother also often made assertions but was then evasive or did not recall information to support these assertions. The following extract from mother’s cross-examination on 10 June 2021 is but one example:
Well, to be assured, as you seem to be, that you would be able to study overseas and complete your degree if you were unable to stay in Australia past the date you’ve nominated […], you must have satisfied yourself that you could do that; correct?---Yes.
You must have spoken to someone, I take it. Would I be right about that?---Yes.
Who was that?---I don’t remember who I spoke to.
When?---Well, I don’t remember.
This year? Last year?---I’m not sure I spoke to someone, and if I did, I don’t remember.
(Transcript of 10 June 2021, p. 33 lines 17–29)
Once again, the Court has considered, but rejected, the possibility that the mother’s memory was adversely affected by trauma. Quite apart from the absence of evidence in this regard, the memory was not of a traumatic event but of relevant and comparatively recent events.
Another example relates to an issue regarding cans of baby formula in early 2022 which the mother recounts at paragraphs 241–243 of her affidavit filed 21 July 2023 (only 12 days before she was cross-examined about this). From the mother’s perspective, this was clearly an urgent issue as reflected at paragraph 241. The father was cross-examined in-depth about this issue (Transcript of 31 July 2023, p. 48 line 7 to p. 52 line 43). However, when the mother was cross‑examined about this event on 2 August 2023 (just a few days later), she did not recall it at all:
Now, reading these messages, do you have any memory of this day?---No.
If I were to tell you this was the day that there was some cans of formula in the bottom of the pram, does that assist you to remember?---No.
You remember the occasion where there were – [Mr Needham] placed some cans of formula in the bottom of the pram?---Not really, no.
…
This was – he placed in the bottom of the pram after you had made requests of him to provide formula?---Sorry, what was the question?
Do you remember an occasion where you asked [Mr Needham] to provide you with some cans of formula?---I have asked him to provide formula, yes.
Do you remember there was one particular weekend where there were exchange of messages about this?---No.
You give some evidence about it in your affidavit, you don’t remember this day at all?---I don’t remember it.
Do you remember ever seeing cans of formula in the bottom of the pram?---Yes.
And do you remember the weekend that that occurred?---No.
So you don’t know what happened before you found the cans in the bottom of the pram?---Correct.
You don’t know what exchange, if any, there was between you and [Mr Needham] over that weekend?---Well, I don’t remember at this stage.
(Transcript of 2 August 2023, p. 186 line 27 to p. 187 line 18)
There are further issues which came to light during the mother’s cross-examination which bring her credibility into question. For example, in mid-2023 the mother did not attend changeover with the child, when the child was supposed to be catching a flight with the father to attend a family wedding. The mother did not mention this event in her affidavit, however, during cross‑examination she accepted that she did not bring the child to changeover, but denied knowing the child was meant to spend time with the father that weekend. The mother said it was a “gross misunderstanding” (Transcript of 3 August 2023, p. 256 line 17) and she thought the child was going to stay with her that weekend because the father was travelling interstate for a wedding. When texts were shown to the mother which were sent to her by the father on the morning of that day, she accepted that the father had sent them, but maintained she had not received them and indicated they did not appear on her phone. In fact, she indicated that no texts from the father appeared on her phone for a period of 11 days. She denied deleting the messages or that there was anything wrong with her phone. The father, through his solicitor, also sent an email to the mother’s solicitor five days earlier specifically outlining the plans for that weekend. The mother claims she did not receive this email. The father’s counsel also asserted that the mother was told about the weekend plans directly by her solicitor, although claims of legal privilege prevented any verification of this assertion. Finally, the plans for that weekend were reiterated by the father’s counsel at a mention heard a few days prior to the weekend, and the mother claims not to have heard this information because she may have been distracted looking after the child. This is so even when the maternal grandmother gave evidence that she was at the home caring for the child. The Court finds it difficult, given the above evidence, to believe that the mother had no knowledge of the father’s plans for that weekend, and this brings the credibility of her evidence into question, as well as raising other relevant issues about her attitude towards her responsibility as a parent. There is also a distinct possibility that the mother deleted text messages from her phone.
In his written submissions received on 23 August 2023 the father outlined one of his concerns as being the false or vexatious complaints made by the mother to police. For example, at paragraphs 361–366 of his affidavit filed 28 May 2021, the father describes an event which occurred in late 2020 where the mother called the police to report the child missing after the father took him out of daycare. She maintained that this was not a false report and that she thought the child was missing. Even with the lack of tendered evidence on this issue, the Court finds it difficult to believe that the mother thought the child was missing at that point in time. The father had already spent a number of occasions with the child by temporarily taking him out of daycare without incident. The mother agreed that she was aware of the father’s plans to spend time with the child that day. The father deposes to hearing the daycare worker inform the mother about the child’s return (paragraph 362 of the father’s affidavit filed 28 May 2021). The Court prefers the father’s evidence about this issue. This event highlights the mother’s anxiety, her poor memory or, (alternatively and just as plausibly) her minimalistic approach to the truth, and the lengths she would go to limit the father’s time with the child.
Another event which reflects poorly on the mother’s credibility is when it was put to her during cross-examination that she refused to provide the father with the child’s Medicare card details and she said “[h]e told me that once he got to the GP, he would let them call me and I should give them the number and that’s what happened” (Transcript of 10 June 2021, p. 78 lines 46–47). She was later shown correspondence which confirmed that the father had requested that she provide him with the child’s Medicare card, and she replied by telling the father to have the clinic call her so she could provide them the Medicare card number (Exhibit A13). Her only response after being shown this correspondence was to say “We’ve had phone conversations prior to these messages” (Transcript of 11 June 2021, p. 3 lines 2–3). When I asked the mother directly about what the issue was with providing the father with the Medicare card details, she responded “there’s a lot of trust issues between us” (Transcript 11 June 2021 p. 3 line 29). We then had the following exchange:
Yes, but what’s there to trust about here?---The Medicare card, there’s not a separate one for [X] or for myself. We have the same card.
Well, that’s normal. Yes?---And - - -
And - - -?---I had taken to – [the child] to these doctors prior and they had my Medicare card information on file, as far as I could remember from the first visit. And as best I could remember, I said to him I don’t have an issue if you have – when you get to the hospital – the clinic, just have them ring me and I will give it to them. And they did ring me and I gave it – because I had been waiting for the call. I gave it to them immediately and then when I asked them for information about [the child’s visit, they said that [the father] hadn’t authorised me to receive that, you know, information. Yes, it’s true in hindsight it would have just been simpler, when you think about it now, to just take a photo of it and send it but, at the time, in the climate of everything that was going on, it – it – it did not occur to me.
The climate hasn’t changed, has it?---No.
(Transcript 11 June 2021, p. 3 line 33 to p. 4 line 1) (emphasis added)
This incident again not only highlights the mother’s altered recollection of events, but also the pervasive mistrust that she holds towards the father.
Lastly, the mother denied ever filming the father at changeovers. She then prevaricated and said that sometimes she holds her phone up as if she is filming, and later that she has filmed him “at least once” (Transcript of 9 June 2021, p. 23 line 42). Counsel for the father called for the mother’s phone and found multiple videos where she had filmed the father. When those videos, along with CCTV footage of her filming, were put to the mother she said “I’d have to see the video” and “I don’t deny those recordings” (Transcript of 9 June 2021, p. 32 lines 7–8 and 44–45). Again, this casts doubt on the credibility of the mother’s evidence as well as demonstrating her abject hypocrisy about the filming issue.
Both parents are highly intelligent. They are well educated. The father was consistently articulate, and throughout the course of these proceedings the mother demonstrated her capacity to be articulate. They were often giving evidence about comparatively recent events, particularly during the second half of the hearing when the evidence was mostly limited to events post-dating June 2021. In this regard the mother’s very poor memory recall is surprising and disconcerting especially in relation to issues and events that were not traumatic in nature. In her cross-examination over a period of three days some of the most common answers given by the mother was that she did not remember, she did not know, or she was not sure, or “perhaps”.
The Court recognises and makes allowance for the fact that both parents gave evidence in a highly emotional context about an issue critically important to them. The Court also recognises that both parents were engaged in an intractable conflict and the probability that this may have distorted their perception of events and issues. The unreliability of the mother’s evidence is still the inevitable result of this analysis.
The mother’s immigration status
As already outlined above, the mother is presently on a temporary visa which is valid until late 2023, on which date she contends she must return to the USA. The mother was previously on a Partner visa which would have provided her with a path to permanent residency in Australia. At paragraph 7 of her affidavit filed 27 May 2021, the mother states that in late 2020 she informed the Department of Home Affairs (“the DHA”) about the breakdown of her relationship with the father, which she was obliged to do pursuant to the terms of the visa application. At paragraph 81 of her affidavit filed 21 July 2023 the mother states that the following month she withdrew her application for permanent residence which she had submitted in mid-2019. After that, she remained in Australia on her student visa, which expired in early 2021, at which point she applied for a “Temporary Activity visa”, which is currently still valid.
In her affidavit filed 21 July 2023, the mother describes a number of avenues which may allow her to remain in Australia, but which she believes are unsuitable. Firstly, she could obtain a Bridging E Visa, although this would require her to become an unlawful non-citizen for a short period of time, and if she departs Australia on this visa the DFA could impose a three-year ban on her return to Australia, which may or may not be able to be appealed on compassionate grounds. Secondly, she could apply for a tourist visa, although this application may not be successful because she might not be seen as a genuine tourist given the length of time she has been in Australia, and in any event this visa may require her to leave the country every three months. Lastly, she does not wish to undertake any further study which may entitle her to obtain another student visa, as this would require her to take out another student loan which she cannot afford. She states that she has no viable legal avenue to apply for permanent residence or any class of visa which would permit her to stay permanently or work in Australia.
The mother relies on the affidavit of the single joint immigration expert, Mr H filed 1 June 2021. Mr H’s advice and opinion echoes the above. He also discussed the possibility of the mother obtaining a class of visa which would allow the holder to remain in Australia for two years and which provides the holder the option of making an application for another class of visa, being a permanent residence visa. However, he found this to be unsuitable as the mother did not have the means to pay the applications fees (which are tens of thousands of dollars), the processing times for these visas are approximately five years, and the mother would not be entitled to a bridging visa which would enable her to remain in Australia lawfully pending the outcome of these visa applications. It was his opinion that while the mother could have applied for a number of different visas, they were not all suitable to her circumstances, and the most appropriate visa option for the mother is the Temporary Activity visa. This is the visa the mother presently holds.
a. communicate by telephone matters of an urgent nature and otherwise;
b. communicate by WhatsApp or some other agreed mobile phone application.
22.The live with parent will ensure that the non live with parent is listed as an emergency contact and next of kin at the child’s day care or school and all health care providers.
23.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
24.That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
25. The mother is restrained from changing the child’s name.
26.The mother is restrained from travelling with the child to a non-Hague convention country without the written consent of the father.
27.The live with parent shall retain the child’s passport[s] except when the child is travelling with the non live with parent in which case the non live with parent will retain the passport during the time the child is with that parent.
28.The non live with the parent shall telephone or FaceTime the child each Monday Wednesday and Friday at a time as agreed between the parties but failing agreement at 8am in the Country that the child is residing in.
29.In addition to communication referred to in Order 28 above the child shall have telephone and/or facetime communication on the following special occasions:
a. Child’s birthday;
b. The non live with parents birthday;
c. Any siblings birthdays
d. Christmas Day;
e. Easter Sunday
f. Mother’s Day and Father’s Day.
30. Both parties shall ensure that the child has a valid and UpToDate passport at all times.
Property31. That the wife shall forthwith return the following property to the husband:
a. Book
b. Tent
c. Dining set
32. The order for spousal maintenance is discharge.
33. Otherwise the mother’s application is dismissed.
34. Costs
SCHEDULE THREE – MOTHER’S MINUTE OF ORDER
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEYFile No. SYC 5643 of 2020
BETWEEN
MR NEEDHAM
(Applicant)
and
MS SHAO
(Respondent)MINUTE OF PROPOSED ORDERS FOR RESPONDENT MOTHER
BY CONSENT IT IS ORDERED:
1. That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for the child X born 2019 (“the child”).
3.The Mother’s right to exercise parental responsibility pursuant to Order 2 is on condition that:
(a)The Mother gives the Father reasonable notice of any such issue for which a decision needs to be made and all reasonable particulars about the circumstances that give rise to the issue, including the name and contact details of any professional person relevant to the issue;
(b)The Mother must genuinely consult with the Father about the issue;
(c)The parties will make a genuine effort to come to a joint decision about any such issue; and
(d)If, after making a genuine effort to come to a joint decision, the parties reach no agreement, then within 14 days of the Mother giving the Father notice of the issue, the Mother may make the decision and inform the Father in writing of the decision and all reasonable particulars of it, including the name and contact person of any relevant professional person.
4. That the child shall live with the Mother.
5.That the Mother be permitted to relocate the residence of the child to City DD, State CC in the United States of America.
6.That in the event that the Mother be permitted to relocate the child to City DD the child shall spend time with the Father as follows:
6.1 Until X is 5 years of age as follows:
6.1.1During a 14 day period to occur at least once a year but no more than 4 times a year in City DD between 9:00 and 5:00pm each Tuesday and Thursday and;
6.1.2 From 8:00am on Saturday to 4:00pm on Sunday each weekend.
6.1.3The Father is to notify the Mother by email of the dates of his proposed time at least 42 days before the proposed travel.
6.1.4For the purpose of Order 6.1 changeover shall occur at a venue agreed between the parties and in default of an agreement at the Mother’s residence at the commencement and conclusion of the time.
6.1.5That the child shall have Facetime communication for up to 30 minutes with the Father on Tuesdays, Thursdays and Sundays at 10:00pm AEST.
6.2 After X attains the age of 5 years:
6.2.1During a 14 day period to occur at least once a year and no more than twice a year in Sydney between 9:00 and 5:00pm each Monday and Wednesday and;
6.2.2 From 8:00am on Friday to 4:00pm on Sunday each weekend.
6.2.3During a 14 day period to occur at least once a year and no more than twice a year in City DD between 9:00 and 5:00pm each Monday and Wednesday and;
6.2.4 From 8:00am on Friday to 4:00pm on Sunday each weekend.
6.2.5The Mother or maternal grandmother shall accompany the child to and from Australia on international flights and shall care for the child during the periods that he does not spend time with the Father.
6.2.6All periods of time spent with the Father in Sydney must fall within the US school holiday periods.
6.2.7The Father is to notify the Mother by email of the dates of his proposed time at least 42 days before the proposed travel.
6.2.8The Father shall be solely responsible for the cost of all his and X’s return airfares to and from City DD, the Father’s accommodation in City DD and the Mother or maternal grandmother’s return airfares to and from City DD and accommodation in Sydney for the purpose of spending time with X pursuant to these Orders.
6.2.9For the purpose of Order 6.1 changeover shall occur at a venue agreed between the parties and in default of an agreement at the Mother’s residence at the commencement and conclusion of the time.
6.2.10That the child shall have Facetime communication for up to 30 minutes with the Father on Tuesdays, Thursdays and Sundays at 10:00pm AEST.
After X attains the age of 6 years:
6.2.11For a period of 7 days to occur up to twice a year in Sydney and up to twice a year in City DD.
6.2.12All periods of time spent with the Father in Sydney must fall within the US school holiday periods.
6.2.13The Father is to notify the Mother by email of the dates of his proposed time at least 42 days before the proposed travel.
6.2.14The Father, Mother or maternal grandmother shall accompany the child to and from Australia on international flights and the Mother or maternal grandmother shall care for the child during the periods that he does not spend time with the Father.
6.2.15The Father shall be solely responsible for the cost of all his return airfares and accommodation in City DD for the purpose of spending time with X pursuant to these Orders.
6.2.16The Father shall be solely responsible for the cost of all X’s return airfares to and from Sydney.
6.2.17Until the Mother is employed and in receipt of income equivalent to AUS $90,000.00 the Father shall be solely responsible for the cost of the Mother or maternal grandmother’s return airfares and accommodation in Sydney for the purpose of the Father spending time with X Sydney pursuant to these Orders.
6.2.18The Mother shall be solely responsible for the cost of the Mother or maternal grandmother’s return airfares and accommodation in Sydney for one trip per year provided that she is employed and in receipt of income equivalent to AUS $90,000.00 for the purpose of the Father spending time with X Sydney pursuant to these Orders.
6.2.19For the purpose of Order 6.2.11 changeover shall occur at a venue agreed between the parties and in default of an agreement at the Mother’s residence or accommodation at the commencement and conclusion of the time. It is noted that the Mother agrees to changeover at Sydney Kingsford Smith Airport or City BB Airport.
6.2.20That the child shall have Facetime communication for up to 30 minutes with the Father on Tuesdays, Thursdays and Sundays at 10:00pm AEST.
After X attains the age of 7 years:
6.2.21For two periods of 14 days per year in Sydney or City DD as agreed between the parties.
6.2.22All periods of time spent with the Father in Sydney must fall within the US school holiday periods and no more than one period of 14 days is to be spent with the child during the US Summer school holiday period.
6.2.23Any 14 day period of time that the Father spends with X between 20 December and 5 January is to occur every alternate year.
6.2.24The Father is to notify the Mother by email of the dates of his proposed time at least 42 days before the proposed travel.
6.2.25The Father, Mother or maternal grandmother shall accompany the child to and from Australia on international flights and the Mother or maternal grandmother shall care for the child during the periods that he does not spend time with the Father.
6.2.26The Father shall be solely responsible for the cost of all his return airfares and accommodation in City DD for the purpose of spending time with X pursuant to these Orders.
6.2.27The Father shall be solely responsible for the cost of all the Father’s and X’s return airfares to and from Sydney.
6.2.28Until the Mother is employed and in receipt of income equivalent to AUS $90,000.00 the Father shall be solely responsible for the cost of the Mother or maternal grandmother’s return airfares and accommodation in Sydney for the purpose of the Father spending time with X Sydney pursuant to these Orders.
6.2.29If the Mother is employed and in receipt of income equivalent to AUS $90,000.00 the Mother shall be solely responsible for the cost of the Mother or maternal grandmother’s return airfares and accommodation in Sydney for one trip per year for the purpose of the Father spending time with X Sydney pursuant to these Orders.
6.2.30That the child shall have Facetime communication for up to 30 minutes with the Father on Tuesdays, Thursdays and Sundays at 10:00pm AEST.
6.3Both parents shall provide the other parent with a copy of the child’s return airfares between City DD and Sydney and details of the Father’s, Mother’s or maternal grandmother’s accommodation or residence in Sydney or City DD at least fourteen (14) days before the commencement of all school holiday period periods.
6.3.1The Father shall collect the child from the Mother or maternal grandmother’s accommodation in Sydney or residence in City DD at the commencement of the time and deliver the child to the Mother or maternal grandmother’s accommodation or residence in Sydney at the conclusion of the time. It is noted that the Mother agrees to changeover at Sydney Kingsford Smith Airport or City BB Airport.
Father’s Day:
7.That the Father have telephone or Skype communication with the child for up to thirty minutes commencing at 10:00pm Australian Eastern Standard Time on Father’s Day with the Mother to initiate the telephone or Facetime call to a Facetime or telephone number to be provided to the Mother by the Father within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone or equipment including any computer equipment to facilitate the Facetime call switched on and recharged at the appointed times, answering the telephone call or Facetime call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.
Christmas:
8.That the Father have telephone or Facetime communication with the child for up to thirty minutes commencing at 10:00pm Australian Eastern Standard Time on 25 December each year with the Mother to initiate the telephone or Facetime call to a Facetime or telephone number to be provided to the Mother by the Father within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone or equipment including any computer equipment to facilitate the Facetime call switched on and recharged at the appointed times, answering the telephone call or Facetime call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.
Child’s Birthday
9.That the Father have telephone or Facetime communication with the child for up to thirty minutes commencing at 10:00pm Australian Eastern Standard Time on the child’s birthday each year with the Mother to initiate the telephone or Facetime call to a Facetime or telephone number to be provided to the Mother by the Father within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone or equipment including any computer equipment to facilitate the Facetime call switched on and recharged at the appointed times, answering the telephone call or Facetime call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so
Father’s Birthday:
10.That the Father have telephone or Facetime communication with the child for up to thirty minutes commencing at 10:00pm Australian Eastern Standard Time on the father’s birthday each year with the Mother to initiate the telephone or Facetime call to a Facetime or telephone number to be provided to the Mother by the Father within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone or equipment including any computer equipment to facilitate the Facetime call switched on and recharged at the appointed times, answering the telephone call or Facetime call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.
Additional Time As Agreed Between the Parties:
11.The Father may spend additional time with the child for such other periods as the parties may agree from time to time.
In the Event that the Mother is not Permitted to relocate the child to City DD, State CC
12. That the child spend time with the Mother in City DD, State CC:
12.1For the whole of the Autumn and Spring school holiday periods each year as gazetted by the NSW Department of Education;
12.2For the first half of all Christmas school holiday periods in even-numbered years commencing in 2024.
12.3For the second half of all Christmas school holiday periods in odd-numbered years commencing in 2023.
12.4For up to two periods of 14 days per year in Sydney during school terms with no more than 14 days during one school term with the Mother to notify the Father at least 28 days in advance of these periods with the Father to deliver the child to the an agreed location or, in default of agreement, to the Mother’s accommodation in Sydney at the commencement of the time and the Mother is to deliver the child to the Father’s residence at the conclusion.
12.5The Father or an agreed agent shall accompany the child to and from Australia on international flights and shall care for the child during the periods that he does not spend time with the Mother.
12.5.1The Father shall be solely responsible for the cost of all his return airfares and for the purpose of the Mother spending time with X pursuant to these Orders.
12.5.2The Father shall be solely responsible for the cost of all X’s return airfares to and from Sydney for the purpose of the Mother spending time with X pursuant to these Orders.
12.6For the purpose of changeover pursuant to these Orders the Mother shall collect the child from the Father at City BB airport or another agreed location at the commencement of the time and return the child to City BB airport or another agreed location of the time.
13.That the child shall have Facetime communication with the Mother on Tuesdays, Thursdays and Sundays at 10:00pm in the United States.
Other Orders:
14.The parties shall each ensure that the other parent’s name, mobile telephone and email address is provided to the co-ordinator or teacher of any day care, school or extra‑curricular activity at which the child attends.
15.Except as otherwise agreed, the parties communicate all non-urgent issues relating to the care, welfare and development of the child via the Our Family Wizard App (or other such App as agreed) except in cases of emergencies when communication shall be via telephone.
16.That each party shall notify the other party of any change to their telephone number(s), address and email address or home address as soon as reasonably practical and in any event no later than 24 hours following any such change.
Passport:
17.That pursuant to Section 11(1)(b) Australian Passports Act 2005 (Cth) the Mother shall be solely authorised to obtain and renew an Australian passport for the child X born 2019 at all times.
18.That the Mother shall be solely authorised to obtain and renew a US passport for the child X born 2019 at all times.
19.That both parties be authorised to apply for and obtain travel documents such as visa or other document to facilitate his entry and/or exit into or out of the Commonwealth of Australia or United States of America or any third State through which the child travels as part of his flight routing.
20. The Mother shall retain the child’s US Passport at all times.
21.In the event that the Mother is permitted to relocate the child to City DD, State CC the Mother shall retain the child’s Australian passport save for periods when the Father is travelling with the child.
22.In the event that the Father is travelling with the child the Mother shall provide the Father with the child’s Australian passport no less than 7 days before that travel and the Father shall return the child’s Australian passport to the Mother upon delivery of the child to the Mother at the conclusion of that travel.
23.In the event that the Mother is not permitted to relocate the child to City DD, State CC the Father shall retain the child’s Australian passport save for any period during which the Mother may require the Australian passport to travel with X to and from Australia after spending time with the Mother.
Airport Watch Order:
24. That Order 10 of the Orders made on 1 September 2020 be discharged.
Name:25.That if the Mother is permitted to relocate to City DD, State CC that within 7 days of the date of the Orders the parties do all acts and things and sign all such documents necessary to change the child’s name at the Registry of Births, Deaths and Marriages NSW to X Shao.
Education and extra-curricular activities:
26.Each party may confer with any teacher, school principal, tutor, coordinator or teacher of any extracurricular activity of the child in relation to the child’s progress and development and such teacher or educator may provide such information as the parent reasonably requests without the consent of the other parent.
27.Each party may obtain from the child’s daycare or school, copies of their school reports, school newsletters, and circulars and school photographs at their own expense.
28.Each party may confer with the child’s General Practitioner or any other medical or dental practitioner or any allied health practitioner who attends on the child to discuss and obtain information about the child.
29.The parties shall notify each other about any serious issues relating to the child’s health as soon as reasonably practicable with such notification to include:
(a) the nature of the issue, illness or injury experienced by the child; and
(b)the name and contact details of any medical or other health practitioner who has attended upon or treated the child; and
(c)all reasonable details of the treatment or management regime of the issue including:
i. any prescription or non-prescription medication to be taken by the child;
ii. any diagnostic testing to be undertaken; and
iii.any follow up consultations that have been recommended and/or scheduled for the child.
Restraints:
30. That each party be restrained from:
30.1Criticising or denigrating the other parent or any member of that parent’s household or extended family in the presence or hearing of the child or allowing the child to remain within the hearing or in the presence of any other person who does so; and
30.2Discussing these proceedings with the child or showing him any document produced or created in these proceedings.
30.3 Not to physically discipline the child.
Reciprocity in the United States:
31.Within 7 days of the Mother requesting the Father to do so, or within 7 days of an entity in the United States of America advising the Mother that it is necessary that she do so in order to effect these Orders, the parties shall do all acts and things, sign all documents, and commence such process as may be necessary to:
(a) Submit to the jurisdiction of State CC, United States of America;
(b)Obtain from a Court of competent jurisdiction in State CC, United States of America recognition of these parenting Orders in the United States of America; or
(c)Obtain from a Court of competent jurisdiction in State CC, United States of America a declaration of the enforceability of these parenting Orders in the United States of America; or
(d)Register and/or record a copy of these parenting Orders in a Court of competent jurisdiction in State CC, United States of America; or
(e)Obtain reciprocal parenting Orders from a Court of competent jurisdiction in State CC, United States of America.
Financial Orders
1.That the Husband shall forthwith pay or cause to be paid to the Wife or as she may direct the sum of $300,000.00 (“the Principal Sum”) within 42 days of the date of these Orders.
Sale of Suburb HH property upon Property Upon Failure to Pay Principal Sum:
2.Should the Husband fail to pay the Principal Sum in accordance with Order 1 then the Husband shall within a further 28 days from the date of these Orders do all acts and things and execute all documents necessary to list for sale by private treaty or auction as agreed between the Husband and Wife the property known and situated at QQ Street, Suburb HH in the State of New South Wales being Folio Identifier … (“the Suburb HH property”) as set out in the following manner:
2.1 the parties shall appoint an agreed real estate agent to act on the sale;
2.2the listing price for the sale shall be as agreed between the parties and failing agreement as recommended by the agent;
2.3if the property is first listed for sale by private treaty and fails to sell by private treaty within 8 weeks from the date the property is first listed for sale, the parties shall do all necessary acts and things to list the property for sale by public auction and the reserve price for the auction shall be as agreed between the parties and failing agreement as recommended by the agent;
2.4in the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the former matrimonial home at a price which is not more than 2.5% below the reserve price;
2.5if the remains unsold, the parties will do acts and things and sign all documents necessary to immediately relist the property for sale by public auction again on a date nominated by the agent and at a reserve price as recommended by the agent;
2.6The parties shall instruct such solicitor or licenced conveyancer that they may agree on to act on behalf of the sale;
2.7The Husband and Wife shall co-operate in every way with the agent including (without limiting the generality of the foregoing):
2.7.1 making the key available to the agent;
2.7.2signing all documents requested by the agent to sell the Suburb HH property;
2.7.3executing a contract for sale in the form prepared by the solicitors or licensed conveyancers having the conduct of the sale at the sale price;
2.7.4allowing inspection of the Suburb HH property at all times as requested by the agent on receipt of verbal consent from both parties;
2.7.5doing all necessary repairs, maintenance or improvements as recommended by the agent;
2.7.6ensuring the Suburb HH property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
2.7.7 doing or saying nothing to hinder or prevent a sale being effected.
3.On settlement of the sale of the Suburb HH property the proceeds of sale shall be paid as follows: -
3.1In payment of real estate agent’s commission, advertising expenses, auction fees and conveyancing/legal fees on sale.
3.2That amounts required to pay all outstanding council rates and water rates on the Suburb HH property;
3.3In payment of principal and interest due and payable in respect of any mortgage registered on the Suburb HH property;
3.4To reimburse the party who paid for all repairs, maintenance or improvements as recommended by the real estate agent to prepare the property for sale upon provision of all receipts by the paying party to the other party before any money is paid in accordance with this order;
3.5Such of the balance of the proceeds of the sale to the Wife necessary to effect the Principal sum in addition to interest calculated at the current rate pursuant to the Federal Circuit and Family Law Rules 2021 from the 60th day after the date of these Orders to the date of settlement;
3.6 The remaining balance to the Respondent.
4.That the parties shall do all acts and things and sign all documents necessary to give effect to these Orders.
5.That thereafter except as specifically provided for by any Order comprising these Orders to the contrary as between the Husband and Wife, the Husband shall retain to the exclusion of the Wife, the following:
(a) his bank accounts;
(b) his motor vehicle;
(c) his superannuation and/or retirement entitlements;
(d)all furniture, furnishings and contents and personal effects in the Husband's possession as at the making of these orders;
(e)any assets and resources in the Husband’s name or to which he is entitled and not otherwise referred to in these Orders.
6.That thereafter except as specifically provided for by any Order comprising these Orders to the contrary as between the parties, the Wife shall retain to the exclusion of the Husband, the following:
(a) her bank accounts;
(b) her superannuation and/or retirement entitlements;
(c)all furniture, furnishings and contents and personal effects in the Wife's possession as at the making of these orders; and
(d)any assets and resources in the Wife’s name or to which she is entitled and not otherwise referred to in these Orders.
7.That other than as is specifically provided for in these Orders, that as at the date of the making of these orders and as between themselves each of the Husband and Wife shall respectively retain sole responsibility and liability for all and any loans liabilities and credit obtained by them in their respective names for any purpose including any past, present or future liabilities owed to the Australian Taxation Office and indemnify and keep indemnified each the other with respect to all and any such liability.
8. That the parties as against the other shall forgive all loans from one to the other.
Procedural orders9.That the parties shall forthwith do all acts and things and sign all such documents as may be necessary to give effect to these Orders.
10.That the Registrar of the Family Court of Australia be appointed pursuant to Section 106A of the Act to execute any document and/or instrument necessary to give effect to these orders in the event of any of the parties failing, refusing or neglecting to execute such document within 7 days of being requested to do so by the parties or by the parties’ legal representatives and the cost of procuring due execution of the document/s and/or instrument/s shall be borne on a solicitor/own client basis by the party in default and the party not in default shall be at liberty without further order of the Court to deduct from any moneys payable to the party in default pursuant to these orders such costs as have been incurred by the party not in default pursuant to this order.
11.That the Registrar or other officer is authorised to execute any such necessary document and/or instrument pursuant to the above order upon being satisfied by Affidavit that refusal, neglect or default as the case may be has occurred.
Costs
12. That the Husband pay the Wife’s costs of and incidental to this Application.
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