Ni and Zang and Ors
[2008] FamCA 1100
•16 December 2008
FAMILY COURT OF AUSTRALIA
| NI & ZANG AND ORS | [2008] FamCA 1100 |
| FAMILY LAW – CHILDREN – Relocation – Shared Parenting – Grandparents |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) |
| Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179 Goode and Goode (2006) FLC 93-277 |
| APPLICANT: | Ms Ni |
| RESPONDENT: | Mr Zang |
| SECOND AND THIRD RESPONDENTS | Mr and Mrs Zang (Snr) |
| FILE NUMBER: | SYC | 4387 | of | 2007 |
| DATE DELIVERED: | 16 December 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 23, 25, 31 January, 21, 25 July, 22 September, 13 October, 27 November & 2 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Cleary of Counsel |
| SOLICITOR FOR THE APPLICANT: | Doolan Wagner Callaghan |
| FIRST RESPONDENT: | Husband appeared in person |
| SECOND AND THIRD RESPONDENTS: | Paternal Grandparents appeared in person |
Orders
The Mother and the Father have equal shared parental responsibility for the child … born on … July 2006 (“the child”).
The Mother have sole responsibility for decisions in relation to the education and medical treatment of the child.
The child live with the Mother.
As and from 1 February 2009 the Mother be permitted to relocate the child’s permanent residence to Christchurch in New Zealand.
Pending the departure of the Mother with the child to New Zealand the child spend time with the Father and/or Mr Zang and Mrs Zang (“the paternal grandparents”):
5.1each Sunday from 9:00 am until 12 noon with changeover to occur at C railway station, from the first Sunday following these orders;
5.2each Wednesday, being the first Wednesday following these orders, from 5:00 pm until 7:00 pm with changeover to occur at the Town Hall railway station.
The Mother not be present during the time the Father and/or the paternal grandparents spend with the child pursuant to order 5 hereof.
After the event referred to in Order 4 hereof the Father and/or the paternal grandparents spend time with the child as follows:
7.1in Sydney for a period of seven days from 9:00 am to 5:00 pm each day during the December/January New South Wales gazetted school holiday period at a time agreed between the Mother, the Father and the paternal grandparents and failing such agreement from the second to the ninth of January of each year;
7.2in Sydney for a period of seven days from 9:00 am to 5:00 pm each day during the July New South Wales gazetted school holiday period at a time agreed between the Mother, the Father and the paternal grandparents and failing such agreement from the second to the ninth of July of each year;
7.3in Christchurch, New Zealand for two periods of seven days each from 9:00 am to 5:00 pm each day at times of the year agreed between the Mother, the Father and the paternal grandparents;
For the purposes of Orders 7.1 and 7.2 hereof the Mother be responsible for payment of the airfares between Australia and New Zealand and accommodation in Sydney for herself and the child.
For the purposes of Orders 7.1 and 7.2 hereof the Mother notify the Father and the paternal grandparents not less than thirty days prior to the visit of the travel arrangements.
For the purposes of Order 7.3 hereof the Father and or the paternal grandparents notify the Mother not less than sixty days prior to the visit of the travel arrangements.
For the purposes of Order 7.3 hereof the Mother do all acts and things necessary to make available for occupation by the Father and/or the paternal grandparents during the periods referred to in Order 7.3 hereof to the exclusion of all others including the Mother and the maternal grandparents the property situate at and known as L Street, Christchurch.
By 4:00 pm on 1 February 2009 the Mother do all acts and things and execute all documents and writings to open an interest bearing account with a branch in Sydney of a bank that carries on business in Australia and deposit to the credit of the account the sum of AUD$15,000 and the account be in the joint names of the Father and the Mother and each of the Father and the Mother be restrained from making any withdrawal from the account except by agreement in writing of the Father and the Mother or order of the Family Court.
It be noted that the purpose of the amount in the bank account described in Order 12 hereof is to assist the Father and/or the paternal grandparents in meeting legal costs and other expenses that may be associated with any proceedings they may commence in consequence of issues arising out of compliance with these orders.
The Mother do all acts and things to ensure that the Father and the paternal grandparents are kept informed of any medical problems or illnesses suffered by the child while in the Mother’s care and in the event that the child suffers any illnesses then the Mother do all acts and things to forthwith notify the Father and or paternal grandparents by way of mobile telephone or e-mail.
The Mother do all acts and things to ensure that the Father and the paternal grandparents are kept informed of the residential address of the Mother and particulars of the others who may reside with the child.
The Mother do all acts and things to ensure that the Father and the paternal grandparents are kept informed of a landline telephone number, mobile telephone number and e-mail address of the Mother.
The Mother do all acts and things to complete notes about developmental milestones, or any issues or concerns about the child’s care, welfare and development, that arise during the period the Mother spends with the child and provide this information in the first week of each calendar month to the Father and the paternal grandparents by way of e-mail.
The Mother do all acts and things to send each week to the Father and the paternal grandparents an e-mail in which detailed information is provided about the development and activities of the child .
The Mother do all acts and things to facilitate the child’s regular access to an e-mail address and an operative internet connection.
The Mother do all acts and things to encourage and assist the child to communicate with the Father and the paternal grandparents by telephone and e-mail.
The Mother do all acts and things to provide to the Father and the paternal grandparents on at least one occasion in each three month period a current photograph of the child.
The Mother do all acts and things to ensure that there is displayed in a prominent and obvious position in the Mother’s residence a photograph of each of the Father and the paternal grandparents.
The Mother do all acts and things to ensure that the child is provided with any letters, cards, presents or photographs that are sent by the Father and/or the paternal grandparents to the child.
The Mother do all acts and things to advise the Father and/or the paternal grandparents in writing that the child has been given any letters, cards, presents or photographs that are sent by the Father and/or the paternal grandparents to the child.
The Mother do all acts and things to provide to the Father and the paternal grandparents any school reports, newsletters and written record of events that involve the child.
The Mother do all acts and things to ensure that as soon as practicable and at least by the age of three the child be enrolled in language classes to ensure that the child is able to converse with the paternal grandparents in the Mandarin language.
The child’s name be removed from the Airport Watch List.
The child’s passport be held by the Mother.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Mother do all acts and things necessary to facilitate the implementation of Order 5.1 hereof.
In respect of the pending proceedings for property settlement and child support such proceedings are adjourned generally with the liberty to either party to restore such proceedings upon giving to the other party and the Court seven days notice.
IT IS NOTED that publication of this judgment under the pseudonym Ni & Zang is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4387 of 2007
| MS NI |
Applicant
And
| MR ZANG |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing are applications for final parenting orders.
The Applicant is Ms Ni who I shall refer to as the Mother. The Mother seeks orders as set out in a Further Amended Application for Final Orders filed on 29 September 2008, namely:
1.That the Applicant mother have sole parental responsibility for [the child] born […] July 2006 (“the child”).
2.That the child live with the Applicant mother.
3.That the Applicant mother be permitted to relocate the child’s permanent residence to New Zealand within one month of the date of these Orders.
4.After the event referred to in Order 3 herein the Respondent father and the paternal grandparents shall spend time with the child as follows:-
4.1 For a period of five (5) days from 10am to 4pm at a time suitable to the Applicant mother during the December/January NSW gazetted school holidays.
4.2 For a period of five (5) days from 10am to 4pm at a time suitable to the Applicant mother during the July NSW gazetted school holidays.
4.3 That the Applicant mother shall be responsible for payment of the airfares and accommodation for herself and the child during each visit.
4.4 That the Applicant mother shall notify the Respondent father no less than sixty (60) days prior to the visit of the intended dates.
5.During all periods that the child spends with the Respondent father and/or the paternal grandparents, the Respondent father and the paternal grandparents shall ensure that the child is appropriately looked after including that she is well fed, refreshed and clothed.
6.In the event that the child suffers any illnesses or allergies during periods in which she is spending time with the Respondent father and/or the paternal grandparents then the Respondent father shall forthwith notify the Applicant mother by way of mobile telephone.
7.In the event that the child becomes distressed during any periods that she spends with the father and/or the paternal grandparents then the Respondent father will do all things necessary so as to ensure that the child is forthwith returned to the mother.
8.That the child’s name be removed from the Airport Watch List.
9.That the Applicant mother be permitted to remove the child from the Commonwealth of Australia for the purposes of overseas travel.
10.That the child’s passport be held by the Applicant mother.
11.That the Respondent father and the paternal grandparents be restrained and injuncted from taking the child outside of the Commonwealth of Australia.
12.That the mother have leave to amend this Application.
The Respondent is Mr Zang who I shall refer to as the Father. The Father seeks the following orders as set out in his unsworn Response to an Application for Final Orders received on 10 November 2008:
1.That the child, the child […] born […] July 2006, live with the mother in Sydney metropolitan area.
2.The mother and the father are to have equal shared parental responsibility for the child.
3.The mother has responsibility for decisions as to the child’s day to day care welfare and development during periods when she is living with her.
4.The father has responsibility for decisions as to the child’s day to day care welfare and development during periods when she is spending time with him.
5.That the child shall spend time with the father:-
a) Before the child commences school:-(As per Family Report Recommendations)
1. That the child spend Sundays with her father and/or her paternal grandparents, from 10am until 11am, in the company of her mother, until she is of three years of age. And if the child or the mother is said to be sick, the mother is to provide the medical certificate and the visiting time be reduced to one hour from 10am to 11am (time pattern modified, but the total time is the same to the respected Family Report.)
2. That the child have visits on alternate Sundays from 9am until 12 pm with her father and/or paternal grandparents (but without her mother present) for the following six months.
3. That the child have visits on alternate Sundays from 9am until 2pm with her father and/or paternal grandparents for the following six months.
4. That the child have visits on alternate Sundays from 9am until 4pm with her father and/or paternal grandparents from the age of four years until the age of five years.
Please note that I still prefer weekly basis order to be made, after taking accounts of the provisions for not showing up in the alternate week by the mother and/or the visiting time being cut short by various reasons claimed by the mother.
b) Once the child commences school:-
As per Family Report Recommendations: By January 2011 that the parents arrange and attend an appointment at Unifam, Relationships Australia or Centacare for the purposes of reviewing the parenting arrangements and planning and discussing the child's schooling. And that the plans for the child to have overnight stays with the father and/or his parents after the age of five years be discussed, taking into account the development of language skills and communication between the child and grandparents.
6.The parents will both be entitled to attend all events involving the child including
a. Sporting fixtures
b. Extra curricula activities that allow for parental attendance
c. School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
And the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.
7.The mother shall ensure that the father is kept informed of:
(a) any medical problems or illnesses suffered by the child while in the mother’s care
(b) any medication that has been prescribed for the child
(c) any social, school or religious functions which the child is to attend
(d) the residential address of the mother and particulars of the others who may reside with the child
(e) any other matter relevant to the child’s welfare.
8.In the event that the father is unable to spend time with the child for any reason then the father’s parents shall spend time with the child, as a substitute for the father in accordance with these Orders.
9.The both parties are restrained from removing the child from the Commonwealth of Australia without the written consent of the other party.
10.In the event that one party wishes to take the child on an overseas holiday then that party must provide the other party with not less than six weeks written notice of their request to travel overseas. This written notice must include copies of return travel tickets, full itinerary, details of the locations (including address) of where the child will be staying and contact telephone numbers for the child during the holiday.
11.That each party shall advise and consult with the other at the earliest opportunity in the event that issues arise in relation to the child in any of the following area: health, religion, cultural upbringing, name, changes to child’s place of residence, travel interstate, major disciplinary issues, employment of the child and social contacts.
12.That each party shall advise the other in writing (by email), and in advance, of any arrangements or appointments for the child that may affect the time to be spent by the other parent with the child.
13.That each party should complete notes about developmental milestones, or any issues or concerns about the child’s care, welfare and development, that arose during the period the parent spent time with the child and exchange this information on the first day on each quarterly by way of email.
14.That each party shall encourage and facilitate the child spending time with the other parent.
15.That each party shall facilitate the child’s regular access to an email address/account in the child’s name and an operative internet connection.
16.That each party shall encourage and assist the child to communicate with the other party by telephone and email.
17.That each party shall encourage and facilitate the child spending time with the other party’s parents and other extended family members.
18.That each party shall have access to school reports, newsletters and events and will facilitate that access to the other party.
19.That the court to provide some kind of mechanism that can ensure that the father and the paternal grandfather will be able to see [the child] in the visiting time, e.g. the mother to pay a bond as a provision of legal expense used by the father if the mother is not turning up in the visiting time or going to NZ and does not come back again.
The Second and Third Respondents are Mr Zang (Snr) and Mrs Zang who I shall refer to as the paternal grandparents. Mr Zang (Snr) is the paternal grandfather. Mrs Zang is the paternal grandmother. The paternal grandparents seek the following orders:
1.The child spend alternate Sunday with the Father and/or her paternal grandparents, from 9:00 am to 11:00 am, in the company of her mother, until she is three years of age.
2.The child have visits on alternate Sunday’s from 9:00 am to 12:00 pm with her Father and/or paternal grandparents (but without her mother present) for the following six months.
3.The child have visits on alternate Sunday’s from 9:00 am to 2:00 pm with her father and/or paternal grandparents for the following six months.
4.The child have visits on alternate Sunday’s from 9:00 am until 4:00 pm with her father and/or paternal grandparents from the age of four years until the age of five years.
5.By January 2011 that the parents arrange and attend an appointment at the Unifam, Relationships Australia or Centacare for the purposes of reviewing the parenting arrangements and planning and discussing the child’s schooling. And that the plans for the child to have overnight stays with the Father and/or his parents after the age of five years be discussed, taking into account the development of language skills and communication between the Father and the grandparents.
The Father was born in July 1966 in China. The Father’s native tongue is Mandarin. The Mother was born in July 1968 in China. The Mother’s native tongue is Cantonese. The parents commenced cohabitation in about July 2005 and were married in May 2006. The parents separated in August 2006 and were divorced on 4 June 2007.
There is one child of the relationship, born in July 2006. The child is now aged two years and four months.
The paternal grandfather was born in July 1936. The paternal grandmother was born in March 1939. The paternal grandparents’ native tongue is Mandarin.
The Father and the paternal grandparents appeared without legal representation.
I had the benefit of three Family Reports of 24 April 2008, 17 July 2008 and 25 November 2008. The Family Consultant was Ms B. Subsequent to the first and second Family Reports, the Mother filed an amended application on 29 September 2008 seeking to relocate to New Zealand with the child. The third Family Report addressed this issue.
The Mother’s family live within one kilometre of each other in Christchurch, New Zealand and consist of her father who is aged 84 years, her mother who is aged 80 years, her sisters Y who is aged 55 years and P who is aged 42 years and her elder brother H who is aged 50 years.
The paternal grandfather is a retired professional. The paternal grandmother is a retired professional. They are permanent residents of Australia. The paternal grandparents live in a one bedroom unit at X. It is owned by their daughter. The Father uses this address as his place of residence when living in Australia.
The paternal grandparents have two children. Their daughter was born in 1968. She spends about three to four months a year in Australia. The child is the only grandchild of the paternal grandparents.
The paternal grandparents are participating in these proceedings. The Mother sponsored the paternal grandparents in May 2006 in terms of their immigration status at which time they obtained permanent residence. The paternal grandparents came from Shanghai to Australia from time to time to be present with and to support their two adult children, including the father in these proceedings, both of whom have returned to live in China.
The Mother is currently employed with S Firm. The Mother is seeking sole parental responsibility for the child. The Mother proposes that the child live with her in Christchurch, New Zealand, where her family live and that she bring the child to Sydney in January and July of each year to have daytime visits with the Father and the paternal grandparents. The Mother also suggested that the Father and the paternal grandparents could travel to Christchurch and stay with her and the child on other occasions.
The Father is seeking orders that he and the Mother maintain equal shared responsibility for the child. The Father and the paternal grandparents are seeking that the child continue to reside in Sydney and continue to see them on a weekly or frequent basis with a view to her spending alternate weekends in their care when she is of school age.
In the Family Report dated 25 November 2008 the Family Consultant made the following recommendations:
1.Because of the primacy of the child’s relationship with her mother and the importance of her mother’s well-being to her optimal development; the current insubstantial attachment she has to her father, and the likelihood that this will continue to be the case even if the child remains in Sydney, that the child and her mother be able to relocate.
2.There be orders obliging the Mother to share information about the child on a regular basis, such as orders obliging her to send the Father a weekly e- mail regarding the child’s development and activities.
3.There be orders that enable the Mother to make decisions about the child’s schooling and medical treatment without requiring consent from the Father.
4.There be orders to enable the child to spend time in the care of her father and/or paternal grandparents on a day-time basis as frequently as possible but that, until the child is five years of age and better able to communicate with her paternal grandparents, her father be present on these occasions.
5.Until the child is at school, the times she spends with her father and paternal grandparents be outside school holiday periods if possible as this will reduce the costs involved.
6.The Mother be able to remain present for these visits until such time as the child appears not overly distressed to separate from her. It is anticipated that, after approximately two days given she will be older as well, the child would be able to attend day visits without her mother without being overly distressed.
7.If possible, there be orders making provisions if visits need to be reorganised, such as six weeks notice being required if someone is suggesting new dates, that new dates need to be agreed on, or extra costs reimbursed if such has been incurred.
8.The Mother display photos of the Father and paternal family in the child’s room at home and that there be an exchange of photos (or DVDs and the like) of the child and them from time to time.
9.There be orders requiring the child to attend Mandarin language classes if they are available.
10.The Mother enable the Father and his parents to stay at one of her family’s homes in Christchurch for a week twice a year should they wish.
11.There be clear orders as to who is responsible for the costs of travel.
In the third Family Report the Family Consultant said that the issues are:
·The possible impact upon the child and her relationships with her father and his parents of the Mother’s proposed relocation to Christchurch, New Zealand.
·The possible impact upon the child and her relationships if she is unable to relocate.
·If the child is able to relocate, what parenting arrangements would be most suitable.
·The impact of the Father continuing to live in China, where he is apparently employed, for substantial periods of time.
PARENTING-RELEVANT PRINCIPLES
General
For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode and Goode (2006) FLC 93-277.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child being as follows; first, that children have a right to know and be cared for by both parents; second, that 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; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, Vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski v Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.
In conclusion, as Brown J said in Mazorski v Albright (supra) at 523 the Act places far more emphasis on the importance of substantial parental involvement in children’s lives. Her Honour said, with which I agree, at 524:
[15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Relocation
There is a great deal of case law dealing with the approach to be taken in cases when one of the proposals for the parenting of a child is that the primary residence of the child be changed: AMS v AIF: AIF v AMS (1999) FLC 92-858; A v A: Relocation Approach (2000) FLC 92-035; H v L (2000) FLC 93-036; U v U (2002) FLC 93-112 and Bolitho v Cohen (2005) FLC 93-224. These are called relocation cases and have proven to be very difficult to deal with. The change of residence proposed may be intrastate, interstate or overseas.
One commentator has suggested that since the commencement of the Family Law (Shared Parental Responsibility) Act 2006 (Cth) the approach to such cases may have to be updated because of the changes made to the legislation: see CCH Australian Family Law and Practice Vol 3 at [80-300].
The issue was dealt with by Dessau J in M and S (2007) FLC 93-313 and her Honour concluded that it was appropriate to follow the pathway as outlined in Goode and Goode (supra) and that there is nothing in the legislation which explicitly alters the previous approach except that there is a legislative intent in favour of substantial involvement of both parents. In Godfrey and Sanders [2007] FamCA 102 Kay J adopted what was said by Dessau J in M and S.
In Bale v Jenkins [2007] FamCA 809 (Full Court), which was a relocation case where the relevant orders were made after the commencement of the amendments made by the Family Law (Shared Parental Responsibility) Act, Finn J said that the appeal was not a suitable vehicle for any significant statement of principle from the Full Court. More recently in Taylor and Barker (2007) 37 Fam LR 461 (Full Court) Bryant CJ and Finn J said that there was considerable discussion as to the appropriate order in which the relevant provisions of Pt VII namely s 60CC and s 65DAA should be considered in determining a case where there was a relocation proposal. However for my part I cannot discern from my reading of the judgment any significant statement of principle.
In my opinion the principles that I should continue to apply are set out in CCH Australian Family Law and Practice at [16-595] as follows:
·The best interests of the child are the paramount but not sole consideration.
·The party seeking to move the residence of a child is not required to demonstrate compelling reasons for the proposed relocation.
·I must evaluate the competing proposals of the parties.
·I am not bound by the proposals of the parties.
·I cannot determine the issues in a way that separates the issue of relocation from that of the best interests of the child. There is not a separate issue as to whether the relocation should be permitted.
·In evaluating the proposals I must weigh the evidence and submissions as to how each proposal would be in the best interests of the child.
·I must follow the legislative directions in s 60CA and 60CC.
·The object and principles of s 60B provide guidance to my obligation to consider the matters in s 60CC.
·I should also take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
There may then be issues as to the appropriate order in which the relevant provisions of Pt VII are considered in determining a case where there is a relocation proposal. As the majority pointed out in Taylor and Barker (supra) the legislation gives no express direction or guidance. In that case the learned magistrate whose decision was the subject of the appeal appears to have dealt with the advantages and disadvantages of the various proposals when considering the matters in s 65DAA and the majority suggested that this was an “entirely appropriate approach”. For my part I have some difficulty with this.
In any event, obviously the various proposals should be considered when dealing with each of the primary and additional considerations set out in s 60CC having regard to the objects of Pt VII and the principles underlying the objects. Then having dealt with the relevant considerations in s 60CC a determination is made as to which proposal is in the best interests of the child. It is at this point that it may be determined that the relocation proposal is in the best interests of the child. Then it is necessary to consider what parenting order to make and it is at this point that consideration has to be given to whether the presumption of equal shared parental responsibility applies or has been rebutted. If the presumption of equal shared parental responsibility does apply then consideration has to be given to the equal or substantial and significant time provisions in s 65DAA. In other words it is at the point of dealing with the matters in s 60CC that the advantages and disadvantages of the various proposals are dealt with and a decision then made as to what is in the best interests of the child.
However it may be that there is another approach. In Taylor and Barker (supra) Bryant CJ and Finn J said at pa 62:
[60] …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.
…
[62] …However, given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (“primary consideration”) and subs (3) (“additional considerations”) of that section it would seem only logical that the Court make findings regarding the matters contained in those sub sections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
It may be that what is being suggested is that the Court must consider the primary and additional considerations and make findings regarding those matters in the context of consideration and evaluation of the proposals including the relocation proposal. However the Court should not then make a finding as to what proposal is in the best interests of the child until after consideration of the presumption of equal shared parental responsibility and depending on this finding until after consideration of the equal or substantial and significant time provisions.
Grandparents
In Potts and Bims [2007] FamCA 394 Moore J observed that some of the provisions of Part VII refer to “parent/s” and that given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as “party”, it follows that a number of sections do not apply when dealing with an application where one party is not a parent.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. This provision does not apply to a party who is not a parent. The presumption of parental responsibility applies only to parents.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
Section 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects. Moore J observed in Potts and Bims (supra) that a number of the objects and principles are expressed to apply to “parent/s” and so are excluded in proceedings where one party is not a parent. Her Honour said that paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is not important but s 60B(1)(c) may apply. Her Honour also said that paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b) and (c) namely that 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 and that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.
As to the primary and additional considerations in Potts and Bims (supra) Moore J said that again the use of the word “parent/s” in a number of the considerations operates to exclude them in proceedings between a parent and non-parent. Falling within that group is the primary consideration in s 60CC(2)(a) and the additional considerations at paragraphs 60CC(3) (c), (e), and (i).
Section 60CG does apply and requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) which provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child does not apply and it follows that 65DAC which deals with the effect of a parenting order that provides for shared parental responsibility does not apply and the provisions of s 65DAA(1) dealing with equal time and 65DAA(2) dealing with substantial and significant time also do not apply. However depending on the facts a court may come to the conclusion, taking into account all relevant considerations, that it is in the best interests of a child that a party who is not a parent have what is equal or substantial and significant time with a child.
I observe that Moore J did say:
However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
Significant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). As seen, s 65C(ba) provides that a grandparent of a child may apply for a parenting order in relation to a child. There is then specific reference to “grandparents” in secs 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act. Also according to s 63C(2A) a parenting plan can refer to a grandparent however, a parenting plan requires the involvement and signature of the parents according to s 63C(1)(b)(ba). This means that a grandparent requires the cooperation of the parent to make a parenting plan.
In the revised Explanatory Memorandum accompanying the Family Law Amendment (Shared Parental Responsibility) Act in respect of grandparents the following was said:
[39] Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children. (emphasis added)
…
[58] New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child’s parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents. (emphasis added)
…
[60] Paragraph 60CC(3)(d) replaces existing paragraph 68F(2)(c) with a modification. Subparagraph 68F(2)(c)(ii) has been modified to make an explicit reference to grandparents or other relatives. The existing provision provides that, in determining what is in the best interests of a child, the court should consider the likely effect of any change of the child’s circumstances particularly in relation to separation from his or her parents and other persons with whom the child has a relationship. New subparagraph 60CC(3)(d)(ii) makes an explicit reference to grandparents or other relatives. This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents. (emphasis added)
…
[62] Paragraph 60CC(3)(f) replaces existing paragraph 68F(2)(e) with a modification. Paragraph 68F(2)(e) has been modified to make an explicit reference to grandparents or other relatives. This provision provides that in determining the best interests of the child, the court should consider the capacity of the parent or of any other person to provide for the needs of the child, including emotional and intellectual needs. The amended paragraph 60CC(3)(f) recognises the importance of the relationships that the child has with wider family, in particular grandparents. (emphasis added)
[151] Item 17 also gives greater recognition to the important role that grandparents and other relatives play in a child’s life. In particular, subsection 63C(2A) specifically provides that a parenting plan may provide for a child spending time with or communicating with the grandparent or other relative of a child. This change is consistent with the amendments to recognise the need to consider the benefit to the child of greater involvement of extended family members.] (emphasis added)
In McKenzie and Edwards and Anor [2006] FamCA 1314 Kay J reviewed the decision of a Federal Magistrate which granted 10 nights contact per year to the paternal grandmother, against the wishes of the mother who claimed that the paternal grandmother did not have the capacity to meet the general and medical needs of the children. His Honour said at 27-28:
The principles that the Federal Magistrate was required to pay attention to are set out in Pt VII of the Family Law Act, in particular the Federal Magistrate is required to make an order that is in the best interests of the children involved and in so doing is required to pay attention to the matters set out in s 60CC insofar as they were relevant.
One of the matters that the legislature directed the Court to pay attention to is the relationship between a child and a grandparent or other relative of the child. I said in Stevens v Lee (1991) FLC 92-201 that where there was a significant degree of hostility between a custodial mother and a paternal grandmother, it would be too great an imposition on the mother to expect an access regime to work efficiently and effectively. The decision in Stephens v Lee needs to now be revisited in the sense that there have now been two attempts by the legislature to emphasise the significant role that a grandparent can play in a child's life. Although that emphasis was not present in 1991 in the legislation, it was introduced in 1995 and has been re-emphasised in the current legislation.
At 35, his Honour further states:
The legislature made it clear that grandparents are significant in children's lives, or can be significant in children's lives. One hopes that all of the necessary precautions are taken by the grandmother to ensure the safety of the children and I hope that with the passage of time the families can build up a modicum and method of communication that will certainly advance the welfare of the children.
In my opinion, the importance of children having a relationship with extended family including grandparents was recognised even prior to the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act. A number of cases dealt with issues regarding applications by persons who were not biologically related to a child but were people significant to the care, welfare and development of a child.
In Stevens and Lee (1991) FLC 92-201 (per Kay J) the paternal grandmother sought to have contact with her grandchild. The grandmother’s son was deceased and there was a highly acrimonious relationship between the mother and the paternal grandmother. At page 78,384 Kay J stated:—
There then comes a second stage, if I may place matters in degree of appropriateness, where a child has a long and well- established relationship with a person other than the parent. This can be a grandparent; it can be a cousin; it can be a godparent; it can be the next door neighbour; it can be the babysitter; or it can be a step-parent. In those cases, if the Court is satisfied that the relationship is of significance to the child, that a bond exists and that the child will suffer detriment if the bond is severed, the degree of suffering then has to be weighed against the degree of hostility which exists in the custodial parent.
In those circumstances if the court is satisfied that the welfare of the child will be best served by continuing the association the child has with the person the parent does not desire the child to associate with any longer, the Court will not hesitate but to continue the relationship. However, it starts from a different premise than it does with non- custodial parents, that is, when it starts dealing with people who are not the natural parents the Court does not necessarily commence from the assumption that access is going to be good for the child.
His Honour then went on (at 78,385):
For my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater exposure the child can have to its biological links with its paternal grandparents, the better for the child, short and long-term. We live in troubled economic times and by way of example, in 20 years' time D may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it will be for D.
However, due to Kay J’s concern that the mother’s hostility towards the paternal grandmother would impact badly on her own relationship with the child, he did not make an order for physical contact and said (at 78,385): “I do not think that the benefits the child would get at this stage from direct contact would outweigh the trauma and difficulties which would be brought about by the mother's attitude, whether the mother's attitude is well held or not”.
In regards to the extract from Stevens v Lee, it is however worth noting the comments of the Full Court in M & T [2003] FamCA 602 where Kay, May and Waddy JJ state at 26: “Stevens (supra) should be viewed in light of the fact that it was decided before the amendments in 1995 which included the inclusion of section 60B and the principles espoused therein”. See also Re C and D (1998) FLC 92-815 and KAM v MJT;JIG (Intervener) (1999) FLC 92-847.
BACKGROUND
In 1987 the Mother moved to New Zealand from China. The Mother said that she went to New Zealand with her family to join her grandmother. On behalf of the Mother evidence was given by her sister Y. Y was born in June 1954. Y and her husband first moved to New Zealand from Hong Kong in about 1985. She contended that they moved to New Zealand “to join my maternal family whose ancestors have been in New Zealand for many generations”. She gave evidence that the Mother first came to New Zealand in 1987 and stayed with her and her husband for over a year until such time as the Mother could financially support herself.
In December 1987 the Father moved to Australia from China.
In 1994 the Wife completed a Bachelor of Commerce degree at a University in New Zealand.
In 1995 the Father commenced studies for a finance degree. He completed his studies in 1997.
On 19 December 1996 the Father purchased a property at K in Sydney.
The Family Consultant said:
13.[The mother] stated that her desire to relocate is primarily because she fears physically and mentally collapsing. There are many pressures on [the mother] and she presents as genuinely struggling to cope. Her fatigue as a result of trying to manage a demanding job and being primarily responsible for a young child appears to be leading to her inability to contain anxiety and emotions. She is distressed by the detrimental effects this is having on [the child]. [The mother] said it has been particularly difficult when either she or [the child] have been ill (which young children in child care frequently are).
14.[The mother] has, appropriately, sought professional help with her post natal depression, the separation from [the father], and the current difficulties she experiences but feels some difficulties are likely to persist due to the circumstances in which she currently lives. [The mother] stated that her nephew is living with her but that he works fulltime and does not substantially relieve her of household tasks and that there are some tasks which have increased as a consequence of him residing there .
15.[The mother] has been unwilling or unable to accept the help and support that the paternal grandparents offer her. Although she has concerns about them caring alone for [the child] because of language difficulties, her inability to allow them into her home, or have their photos in her home or welcome their involvement with [the child] is mainly due to feelings of hurt and resentment that she continues to feel. [The mother] felt very abandoned by [the father] at a time when she was very vulnerable after [the child’s] birth. Litigation and the conflicts associated with it have led to [the mother] experiencing [the father] and his family as adding to her difficulties.
16.There are also considerable financial conflicts contributing to [the mother] not experiencing [the father] and his family as supportive. [The mother] only receives about $95 per month in Child Support and she believes that [the father] has not disclosed income and assets.
I am concerned that at the present time the Mother is finding it difficult to care for the child. Given the Mother’s failure to recognise the importance of the relationship of the child and the Father and the relationship with the child and the paternal grandparents I am of the view that in some important respects the Mother is unable to adequately provide for the emotional needs of the child. As well I have no doubt that given her state of health the Mother is finding it very difficult in coping and dealing with aspects of the day to day physical care of the child. However, I accept that the likelihood is that the ability of the Mother to care for the child would be enhanced if she were to live in New Zealand with the child.
In the Family Report the Family Consultant also said:
10. The physical and mental health of a child’s primary caregiver, in this case exclusively [the child’s] mother, is fundamental to the child’s well-being and optimal development. There is little doubt that, if [the child] relocated with her mother, she would benefit from having her mother more available to her both physically and emotionally because of her mother’s stated intention to work less. She would also be likely to develop other supportive relationships with family and cousins (as these would be promoted in a very positive way to her by her mother) and wider family connections generally benefit children’s development. [The child] does currently exhibit difficulties with separation and social engagement which could be associated with [the mother’s] stated difficulties (such as a lack of time with [the child], [the mother’s] physical and emotional depletion and her stated lack of social supports).
182.I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and of either of the parents and any other characteristics of the child that I think are relevant.
183.The Mother submitted that the child is a two year old girl. The Mother is from China and her first language is Cantonese. The Mother immigrated with her family to New Zealand 20 years ago and studied and qualified in New Zealand in her profession. The Father is from China and his first language is Mandarin. The Father arrived in Australia for the first time approximately 20 years ago. The paternal grandparents use Shanghaiese as their first language and understand Mandarin. The child is beginning to speak Cantonese and English. She has a connection with China and Shanghai and New Zealand as well as Australia.
184.It is important for the child to maintain a connection with the culture and traditions of the Father and the Mother. However, the relevance of this matter does not depend on whether the child resides in Sydney of Christchurch.
185.I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
186.The Mother submitted that she has taken on the responsibilities of parenthood most seriously. She has worked full time to her own detriment in order to properly provide a home and an upbringing for the child. She has put herself under considerable strain which has affected her own health from time to time. The Mother has tried to maintain a respectful relationship with the paternal family although she has undoubtedly been deeply disappointed by what she perceives as the Father’s attitude to parenthood.
187.Subject to one important matter, I accept that the Mother has an appropriate attitude to the child and to the responsibilities of parenthood. However, as I have already made clear I am concerned about the attitude of the Mother towards the relationship of the child with the Father and the attitude of the Mother towards the relationship of the child with the paternal grandparents.
188.I am concerned about the attitude of the Father to the child and to the responsibilities of parenthood. The Father has spent very little time with the child and proposes in the future to spend very considerable periods of time in China. I am also of the view that the Father has been content that the Mother bear the significantly greater responsibility for the care and support of the child.
189.I am required to consider any family violence involving the child or a member of the child's family. I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). This matter is not relevant.
190.I am required to consider 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.
191.This is a difficult matter. Given the issues that have arisen in relation to the current orders it may be that whatever regime I order there may be further proceedings in relation to the child.
192.At this point if I adopted the first approach that I have outlined above I would make a finding as to which proposal was in the best interests of the child. However the second approach would suggest that I not do so until after consideration of the presumption of equal shared parental responsibility in s 61DA(1) and if the presumption does apply then considered pursuant to s 65DAA the issues of equal time with each parent or substantial and significant time with each parent. The first approach may make the task easier and more understandable. However it may not matter which approach is adopted. I will adopt the second approach.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
In all the circumstances of this case, I am satisfied that there are no reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence and thus the presumption of equal shared parental responsibility does apply.
In the second Family Report the Family Consultant recommended that the parents retain shared parental responsibility for the child. In the third Family Report the Family Consultant recommended that there be orders that enable the Mother to make decisions about the child’s schooling and medical treatment without requiring consent from the Father. I accept these recommendations. I am satisfied that the presumption has not been rebutted subject to the authority of the Mother to make decisions about the child’s schooling and medical treatment. Whether the Mother resided in Sydney or in Christchurch the Father will continue, as he has since the child was born, to spend significant periods of time absent from Australia.
TIME SPENT WITH EACH PARENT
As I am satisfied that the presumption of equal shared parental responsibility does apply I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If I do not propose to make an order for the children to spend equal time with each parent then I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent.
In this case it is not proposed by either parent that the child spend equal or substantial and significant time with each parent given the Father’s time spent outside Australia.
CONCLUSION
in my view, ultimately in this case, it comes down to the concerns I have about the effect on the child of residing in Christchurch and thus spending less frequent time with the Father and the paternal grandparents balanced against the obvious enhancement of the ability of the Mother to care for the child if the Mother and the child reside in Christchurch.
As I have already noted the Family Consultant said the physical and mental health of the Mother as the child’s primary caregiver is fundamental to the child’s well-being and optimal development. I accept the opinion of the Family Consultant that if the child relocated with her mother, she would benefit from having her mother more available to her both physically and emotionally.
I have come to the conclusion that the proposal that is in the best interests of the child is that she resides in Christchurch in New Zealand with the Mother. However, there will be a number of conditions including that the child resides in Christchurch so as to be nearby to members of the maternal family.
As I have made very clear I am concerned that the child’s relationship with the Father and members of the paternal family be maintained and fostered and I have concerns about the ability of the Mother to ensure that this happens. I am also concerned about whether or not the Mother will comply with the orders that I propose to make given her attitude towards the orders that were made in January 2008.
I am going to make orders that refect the recommendations of the Family Consultant in relation to the Mother positively promoting the child’s knowledge of the Father and the paternal grandparents and helping the child incorporate them into her life.
I am going to make an order that the Mother deposit an amount of $15,000 to the credit of an agreed interest bearing controlled monies account in the joint names of the Husband and the Wife and that the funds be retained in the account until further order. The purpose of the payment will be solely to assist the Father and/or the paternal grandparents in meeting legal costs and other expenses that may be associated with any proceedings in consequence of issues arising out of compliance with the orders I propose to make.
I am also going to provide that the child will spend two extended periods in Sydney with the Father and/or the paternal grandparents and that the costs of travel for the child between New Zealand and Australia will be met solely by the Mother. I am also going to make an order that gives the Father and/or the paternal grandparents the opportunity on at least two occasions in each year to spend an extended period of seven days with the child in Christchurch in New Zealand and in that event the Mother do all things necessary to ensure that while the Father and/or the paternal grandparents are in New Zealand, they shall be able to occupy the property in Christchurch which is presently owned by the Mother to the exclusion of all members of the maternal family including the Mother and maternal grandparents.
I was informed that the Mother can understand and communicate in Cantonese, Shanghainese and English. I am going to make an order that requires the Mother to ensure the child is educated and has the ability to communicate in Cantonese and Shanghainese. The practical utility of some of the orders I propose to make may not be apparent until the child grows older such as the Mother taking steps to ensure that the child has the ability to communicate with the Father and the paternal grandparents.
As I have said this is a very difficult case. I have considerable sympathy for the Father and in particular the paternal grandparents. They may perceive that what I propose to do is not fair. However it is not an issue of what is fair or unfair but what is in the best interests of the child and notwithstanding the concerns about the ability of the child to spend time with the Father and/or the paternal grandparents I have no doubt that it is in the best interests of the child having regard to the current circumstances of the Mother that she reside with the Mother in Christchurch in New Zealand where the Mother will be able to obtain assistance from members of the maternal family. However it is on the basis that the Mother will do all that is necessary to deal with the issues that arise for the child by reason of the inability of the child to have frequent face to face association with the Father and the paternal grandparents.
Once the child commences to attend school I would anticipate that the regime which I propose to establish will be revisited and at that time it would be anticipated that the child will be able to spend at least one half of each school holiday period and perhaps more with the Father and/or the paternal grandparents in Sydney. The regime which I propose to establish will enable the Mother to establish herself in New Zealand and to settle the child.
I am not going to make any orders requiring the presence of the Mother during any periods the child spends with the Father and/or the paternal grandparents. In the result there may be some short period when the child is unsettled. However I currently have little confidence in the Mother taking steps to ensure that there are no difficulties. Obviously the Mother and the Father and the paternal grandparents can agree on some other arrangement but in the absence of any such agreement the regime I propose will apply and the child will therefore get to spend some time with the paternal family.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 17 December 2008
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