Olmos and Morrall (No 2)

FAMILY COURT OF AUSTRALIA

OLMOS & MORRALL (NO. 2)

[2016] FamCA 812

FAMILY LAW – CHILDREN – Relocation to Germany – Where the mother seeks an order to relocate the child to Germany – Where the father opposes the relocation order – Where the mother seeks to continue to be the primary carer of the child irrespective of the outcome of the relocation and the father seeks to be the primary carer – Where the mother has a Major Depressive Disorder single episode – Current episode moderate to severe and if she is forced to remain in Australia, she will function poorly and remain emotionally impoverished – Where the proposals as to relocation are finely balanced and risks to the child’s relationship with the father are to be weighed against the ability of the mother to act as primary carer in her current mental state –Where the best interests of the child will be met by allowing the relocation – Where orders are made providing for the father to spend time with the child in Germany – Where the parties will have shared parental responsibility – Where the mother’s application for relocation is allowed.

Family Law Act 1975 (Cth) s 60CC

A v A: Relocation Approach (2000) FLC 93-035
B v B Family Law Reform Act 1995 (1997) FLC 92-755
East & Loewe [2015] FamCA 517
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) FLC 93-112

APPLICANT:

Ms Olmos

RESPONDENT:

Mr Morrall

FILE NUMBER:

BRC

11732

2012

DATE DELIVERED:

23 September 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Canberra

JUDGMENT OF:

Benjamin J

HEARING DATE:

15 April 2016, 23, 24, 25, 26 May 2016, 28 and 29 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies (on 15 April 2016)
Mr Page QC thereafter

SOLICITOR FOR THE APPLICANT:

Catherine Coles
Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Gill (on 15 April 2016)
Mr Maurice of Counsel thereafter

SOLICITOR FOR THE RESPONDENT:

Juliette Behrens
Dobinson Davey Clifford Simpson

Orders

All previous parenting orders relating to B born … 2010 (‘the child’), including those made by this court on 31 July 2014, be and are discharged as and from 8 January 2017.
The following parenting orders will have effect and will operate as and from 8 January 2017.
Ms Olmos (‘the mother’) and Mr Morrall (‘the father’) shall have equal shared parental responsibility for the child save that at no time will the child be enrolled at a school operated by the D Church without the written consent of both parties or an order of a court of competent jurisdiction.
On or after 8 January 2017, the mother be and is permitted to relocate the child's permanent place of residence to Town W in Germany and the child shall live with the mother.
Each party will notify the other parent of any change of residential address, email, telephone or mobile telephone number at least seven (7) days in advance, if possible, and within forty eight (48) hours of any change if advance notice is not possible.
Each party will notify the other parent by telephone of an emergency, or otherwise via text message or email message, of all matters concerning the health of the child as soon as practicable, being:-
6.1any illness, accident or injury suffered by the child, including any follow up treatment;
6.2any significant medical or dental treatment provided to the child; and
6.3any medication the child is to take while in the other parent's care, including particulars of dosage.
By this Order, all schools, medical or dental practitioners and organisers of extracurricular activities are authorised to discuss all matters relating to the child with both parties and to release all information concerning the child to both parties as may be requested by either of them from time to time.
The father shall spend time with and communicate with the child as agreed in writing in advance between the parties and failing agreement as follows:-

If the father lives in Australia:-

On one occasion each year for a period of not less than four weeks in the months of August/September or over the Christmas period (to coincide with the German vacation periods) with the mother to be responsible for arranging the travel of the child and herself to and from Australia and the parties are to share equally in the costs of the child's travel to and from Australia, the child will spend time with the father as follows:-
9.1until the child is seven (7) years of age, she shall spend seven (7) nights with her father and then one (1) night with her mother; repeated until the completion of the four (4) weeks; and
9.2upon the child turning seven (7) her time with the father shall be overnight for the entire four week period.
For the purposes of Order 9 the mother shall consult with the father and arrange the flights from Germany to Australia no less than ninety (90) days prior to the departure time in either August/September or over the Christmas period.
If the father travels to Germany:-
11.1the child shall spend time with him on each occasion for a period of up to four (4) weeks on the same basis as set out in order 9 above, provided the father ensures the child's attendance at school and the father is to be responsible for arranging and paying his travel and accommodation costs in Germany.
11.2for the purposes of this Order the father shall consult with the mother and arrange flights no less than ninety (90) days prior to his departure date.
When the child is in the mother's care in Germany and the father is in Australia the father shall communicate with the child by Skype or FaceTime or similar technology each Wednesday between 7am and 8am German time and each Sunday between 10am and 11am German time.
When the child is in the father's care in Germany the mother shall communicate with the child by Skype or FaceTime or similar technology each Wednesday and Sunday between 6pm and 7pm German time.
When the child is in the father's care in Australia the mother shall communicate with the child by Skype or FaceTime or similar technology each Wednesday and Sunday between 6pm and 7pm Australian time.
The parents will facilitate the child speaking with the other parent (with whom the child is not living) in accordance with the reasonable requests of the child.
Notwithstanding these Orders the child shall spend from 12 noon Christmas Eve to 11am Christmas Day with the mother if the mother has travelled to Australia to facilitate the child spending time with the father in consecutive years (so as to ensure that the child live with the mother each alternate year from 12 noon Christmas Eve to 11am Christmas Day).

If the father makes his permanent residence a location no further way than a 60km radius from the mother's home in Germany, the father shall spend time with the child as follows:-

On a fortnightly basis:-
Week one:
17.1From after school Friday until before school Monday; and
Week two:
17.2From after school Wednesday to before school Friday.
During the school holidays as follows:-
18.1until the child is seven (7) years old she shall spend time with her parents during the school term and long summer holiday period on a week about basis, commencing 5pm on the last day of school term to 5pm the Sunday prior to the commencement of the new school term; and
18.2upon the child turning seven (7) she shall spend time with her parents for one half of all school holiday periods, commencing with the father in odd years and with the mother in even years, and alternating thereafter. For the purpose of this Order the school holidays shall commence at 5pm on the last day of the school term and conclude at 5pm on the Sunday prior to the commencement of the new school term, with changeover to occur at 5pm on the middle Saturday.
During the Christmas school holidays, notwithstanding the arrangements in these Order, time shall be as follows:-
19.1with the mother from 9am on Christmas Eve until 12noon on Christmas Day in even numbered years and from 12noon on Christmas Day until 5pm on Boxing Day in odd numbered years;
19.2with the father from 9am on Christmas Eve until 12noon on Christmas Day in odd numbered years and from 12noon on Christmas Day until 5pm on Boxing Day in even numbered years.
Notwithstanding these Orders:-
20.1The child shall spend time with her mother on German Mother’s Day and with her father on German Father's Day from 9am until 5pm (provided the child is living or spending time in the State where the respective parent is living).
20.2The parent with whom the child is not otherwise living or spending time with on the child’s birthday shall spend time with the child on the child's birthday from after school until 7pm if that day falls on a weekday or from 1pm until 6pm if it falls on a weekend or public holiday (provided the child is living or spending time in the State where the respective parent is living).
For the purposes of changeover the father shall collect the child at the commencement of his time and the mother shall collect the child at the conclusion of the father's time.
That the parties shall communicate with the child by Skype or FaceTime or similar technology each Sunday during the school term when the child is not in their care between 6pm and 7pm German time.
The parties shall communicate with the child by Skype or FaceTime or similar technology during the school holiday periods when the child is not in their care each Wednesday and Sunday between 6pm to 7pm German time.
The father may travel with the child to Australia during the months of August/September for up to five weeks, provided that the child spends time with the mother for two consecutive weeks in the next school holiday period(s) during that calendar year.
In the event the father elects to travel with the child to Australia during the Christmas holiday period, the father's time with the child pursuant to these Orders shall be extended by two weeks to enable the child and the father to spend four weeks in Australia, provided that the child spends time with the mother for the whole of the Term 1 school holidays in the New Year.
The father must provide the mother with an itinerary and copy of a return ticket for the child at least ninety (90) days prior to the travel provided for in these Orders or otherwise agreed between the parents.
In the event the father elects to travel with the child to Australia during a period which includes Christmas Day, the child shall spend from 4pm Christmas Eve to 4pm Boxing Day with the mother the following year and the father shall not be permitted to travel to Australia with the child during that period.
The parties do all things necessary to:-
28.1obtain from a court of competent jurisdiction in Germany recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 ("the Child Protection Convention"), of these Orders; or
28.2obtain from a court of competent jurisdiction in Germany a declaration of enforceability in Germany pursuant to Article 26 of the Child Protection Convention, of these Orders; or
28.3Register in a Court of competent jurisdiction in Germany pursuant to Article 26 of the Child Protection Convention, these Orders.
28.4It is noted that the relocation of the child is not dependent upon the putting into effect of this order prior to the mother’s departure to Germany.
Pursuant to s 65DA(2) and s 62B of the 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.
All outstanding parenting applications be dismissed, except as to costs.
Any costs applications to be made in accordance with the Family Law Rules 2004 (Cth).
At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olmos & Morrall (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRC 11732 of 2012

Ms Olmos

Applicant

And

Mr Morrall

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Relocation applications are, by their nature, complex and difficult determinations. There is generally little scope for common ground between the parties, who in turn are usually in serious conflict with each other and the consequences of decisions, either way, are significant in terms of the well-being of the child.
The proceedings in respect of this child are no exception to the above.
This dispute relates to the parenting arrangements for six year old B (‘the child’), who is trapped in the vortex of her parents’ conflict.
The child’s mother, Ms Olmos (‘the mother’), is and has at all times been the child’s primary carer. On most of the available evidence, she is a very good primary carer. The mother wishes to relocate, with the child, from Canberra in the Australian Capital Territory (‘ACT’) to Town W in Germany. The mother is a German national and is presently unemployed. She claims that she is unable to find any meaningful work in Canberra. She is highly educated and until recent times was employed at very senior and well remunerated levels. The mother now lives in very poor circumstances and claims that she is isolated from her family and friends. The mother has developed a serious mental illness and I am satisfied that her deep desire to return to Germany and be with her family and friends, combined with her lack of employment and future employment opportunities, her impecunious circumstances, plus the poor and difficult relationship with the father are significant factors in her state of health.
Mr Morrall (‘the father’) is, on all of the available evidence, a good and devoted parent. He loves the child and that love is reciprocated. He and the mother were involved in earlier parenting litigation which was settled by consent orders made on 31 July 2014, barely two years ago. The father believes that the mother’s present application to relocate is a continuation of the earlier litigation. He is or was sceptical about the mother’s assertion of mental health issues, although he conceded the illness during the hearing. He believes that the mother will continue her drive to return to Germany irrespective of the outcome of this proceeding. As such, he seeks an order that the child’s primary residence is changed to him so as to enable the child to have an ongoing relationship with both parents. He submits that he alone is the parent who will facilitate a relationship between the child and both parents. He fears that the move to Germany will prevent him from having any meaningful relationship with the child. He is totally opposed to the relocation.
The communication between the parties is poor and they neither like nor trust the other. The parties are polarised in their respective positions regarding the welfare of the child and, given the history between them, this situation is unlikely to be ameliorated irrespective of the outcome of these proceedings.
It is in this context that this decision is made and I have considered and weighed each of the various proposals made by and on behalf of each of the parents in coming to this determination.

The parties’ respective positions

The mother seeks orders that if the father remains in Australia then the child spend no less than four weeks in the months of August/September or over the Christmas period with the father in Australia and other times in Germany and that there be regular electronic communication. The mother seeks more expansive orders, in terms of the child’s time with the father, if the father resides within sixty kilometres of her home in Town W. The detail of that order is set out in a minute filed during the trial.[1]
[1] Exhibit M 4.
The father seeks orders in accordance with the amended minute of order[2] which provided for equal shared parental responsibility, that the child live with him and spend time with the mother as set out in that exhibit. The exhibit provides for the arrangements, if the mother is living in Australia and if the mother is living in Germany, but the child is living with the father in Australia. It also sets out the orders that the father seeks in the event that the mother is permitted to relocate the child’s place of residence to Germany.
[2] Exhibit F2.
Given the poor communication between the parties and the high level of conflict, I raised with counsel for each of the parties, early in the trial, that I may consider making an order for sole parental responsibility, one way or the other, and that they should address me in relation to that aspect of parenting.
Each of the parties provided a case outline at the commencement of the hearing.[3] I indicated to the parties that I would not regard the facts asserted in those outlines as facts, unless either agreed or otherwise established, as I would make my own findings in that respect, but I would regard them as part of their submissions in terms of these proceedings.
[3] Exhibit F1 - outline of argument for the father filed 19 May 2016.

THE ISSUES

All of the issues discussed in these reasons have been considered in the context that:-
·The best interests of the child have priority over the interests of the parents;
·It was not necessary for either parent to show compelling reasons to move or not to move;
·I have taken into account the legitimate interests of both parents, including that neither parent bears an onus; and
·The mother needed to and has demonstrated how the proposed move is in all of the circumstances, in the child’s best interests.
The issues are:-
a)Given the context of the dispute, including the unhappiness of the mother, her emotional, heath and financial circumstances, whether the child lives primarily with the mother or father;
b)If the child is to live with the father, what will be the likely impact upon the mother and consequently the child’s relationship with her, and how that risk may be moderated;
c)If the child is to remain in Australia in the primary care of the mother, the likely effect of that outcome on the mother’s capacity to parent the child including how that risk may be ameliorated; and
d)If the mother is permitted to live with the child in Germany, the likely impact upon the child’s relationship with the father and how that risk may be ameliorated.
On the first day of the hearing it seemed from submissions made by her then Counsel that the mother was asking the Court to accept that she would change her primary residence to Germany irrespective of whether the Court permits the child to travel with her. In her later evidence and subsequent submissions it was made clear that this was not the mother’s position. Her evidence was that her mental health, her lack of employment and consequent poverty, combined with her deep desire to return to Germany were such that she may not be able to continue to be the primary carer of the child. I have considered the evidence (including reading the relevant transcripts) and I am satisfied that there was an unintentional miscommunication and that the mother at all times wished to continue in her role as primary carer of the child but was concerned about her ability to do so if her health deteriorated further.

In coming to the determination in this proceeding, I considered the needs and interests of the child in the circumstances of the child continuing to live with the mother, both remaining in Australia and alternatively living in Germany in her primary care, enabling the father to spend time and communicate with the child locally and from a distance.
Further, I considered the needs and interests of the child in the circumstances of the child continuing to live with the father and both remaining in Australia and enabling the mother to spend time and communicate with the child locally and from a distance.
I first considered what arrangements should be made in relation to parental responsibility. I then considered the questions of the child’s primary carer, place of residence and the questions of the child spending time and communicating with the other parent. In each scenario I considered the broad range of options in terms of parents spending time and communicating with the child.

THE LAW

Counsel for the father outlined the law and there was no dissent on behalf of the mother. In principles emanating from B v B Family Law Reform Act 1995 (1997) FLC 92-755, A v A: Relocation Approach (2000) FLC 93-035 and the High Court in U v U (2002) FLC 93-112 are that that relocation cases are not a special category of parenting cases and the same statutory path ought to be followed. Further in A v A: Relocation Approach (supra) the Full Court said the following matters need to be considered when dealing with such applications as set out in paragraph 12 above:-
· The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
· A court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
· It is necessary for a court to evaluate each of the proposals advanced by the parties.
· A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ''permitted''.
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
· It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.
· The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
· It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2. For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;
· As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC ¶ 92-755 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
This outline of course must be considered in reference back to the best interests of the child.
Senior counsel for the mother took me to a decision of Watts J in East v Loewe (2015) FamCA 517 where he referred to the Full Court decision in Taylor & Barker (2007) 37 Fam LR 461. His Honour described the mother’s ‘happiness and contentment’ as a significant matter because of its impact on the child’s happiness and contentment. I agree that that can be (and is in this case) a significant matter, with the clear caveat that each parenting determination is based upon the facts of that particular determination.

BACKGROUND

At the commencement of the second day of hearing, I informed the parties that unless there were submissions to the contrary, I would compare the chronology set out in the father’s outline of argument with the chronology tendered by the mother[4] and where those chronologies were consistent, I would treat them as agreed facts[5].
[4] Exhibit M5 mother’s chronology.
[5] Transcript of Proceedings dated 24 May 2016 - page 2, line 13.
The mother is aged 43 and was born in Germany. The mother moved to Australia in about 2001 and has travelled extensively between those countries since that time.
As to her employment she has a diploma from a university in Germany. This involved studying horticulture. The mother studied, researched and was then awarded a PhD. She asserts her expertise is in horticulture as opposed to agriculture. She went on to say that her employment prospects are with a government agency or a university. She is a researcher. The mother was employed with a government agency as a research project officer. That contract expired in June 2015 and since that time the mother has not been in paid employment. I accept that evidence.
There is an issue as to whether she is both willing and able to find suitable work.
The mother endeavoured to find employment and set out her job applications in paragraphs 198 to 218 of her affidavit filed 17 November 2015 (‘mother’s trial affidavit’). As I indicate later in these reasons, I accept the veracity of that evidence.
The father is aged 39. He was born in Country E and immigrated to New Zealand in 1997 and then to Australia in 2009.
The parties commenced a relationship in October/November 2009 and married in late 2009.
In about October 2009 the mother travelled to Germany where she discovered that she was pregnant. The child was born in Australia in 2010 and is now aged six. At the end of July 2010 the maternal grandmother visited Australia for about four weeks.
In March 2011 the mother and child travelled to Germany for six weeks. The father joined them in Germany and stayed for two weeks. The parties and the child together returned to Australia in April 2011.
Later that year, in November, the mother and child travelled to Germany and there they remained until July 2012. The father visited Germany from December 2011 and until January 2012. The father claimed that the mother retained the child in Germany without his consent and that he commenced Hague Convention proceedings. The mother was not aware of those proceedings and returned to Australia with the child voluntarily.
The mother and father decided to move away from the Brisbane area in late 2012. The mother applied for work in Canberra and New Zealand, with the father’s knowledge and consent. They sold some of their belongings. In early November 2012 the mother was offered work in Canberra.
On 19 November 2012 the parties separated and on about 27 November 2012 the mother moved to Canberra to take up employment as had been previously envisaged by the parties.
In December 2012 the father submitted his PhD thesis and was later awarded that degree. In mid-January 2013 the father spent time with the child (then aged about two and a half) absent any orders.
The father commenced parenting proceedings in the then Federal Magistrates Court, Brisbane. On 12 March 2013 interim consent parenting orders were made and the proceedings were transferred to the Family Court at its Canberra Registry. The Interim Orders provided that the child spend time with the father each Tuesday and Thursday evening, and from 9.00 am Saturday until 5.00 pm Sunday each alternate weekend
On 25 March 2013 the father moved to Canberra and obtained employment later that year. He is presently employed as a Technical Officer and earns about $56,000 net per year. His two year employment contract expires later in 2016. He believes that that contract is likely to be renewed and he is likely to remain in that position until at least 2021. I accept that that is the case.
In June 2013 the mother completed the “Parenting for Positive Relationship” course. Since then she has completed a first aid course “Caring for Kids. It was specifically about first aid for children. Further, in the absence of being able to attend the "Circle of Security" parenting course the mother obtained and read the “Circle of Security” parenting book prior to commencing the course. In October 2014 she undertook and completed the “Circle of Security” parenting course with psychologist Ms S.
On 25 June 2013 the child’s time with the father increased to each: Tuesday and Thursday; from Friday evening until 5.00 pm on Sunday each alternate weekend; and from after day care on Tuesday to before day care on Wednesday in the alternate week.
From about 10 July to 14 August 2013 the maternal grandmother visited Australia.
The time increased further in September 2013 when the child commenced spending time with the Father from after day care on Tuesday afternoon until before day care on Wednesday morning; from after day care on Thursday afternoon until 6.30 pm; and from after day care on Friday until 5.00 pm on Sunday and in week two from after day care on Tuesday afternoon until before day care on Wednesday morning and from after day care on Thursday afternoon until 6.30 pm.
On 4 October 2013 the mother sought a variation of the time arrangements. That application was dismissed with costs.
The parties’ marriage was dissolved and became final by order made on 8 March 2014.
The proceedings were listed for trial on 30 and 31 July 2014. On 31 July 2014 the proceedings were settled by consent, and orders were made. Those orders provide in essence:-
Week one
(a)from after day care on Tuesday until the commencement of day care on Wednesday;
(b)from after day care on Thursday until 6.30 pm; and
(c)from after day care on Friday until 5.00 pm on Sunday.
Week 2
(a)from after day care on Tuesday to the commencement of day care Wednesday; and
(b)from after day care Thursday until 6.30 pm.
The orders also provided for the father to spend time with the child during school holidays and special occasions.
Following the orders the child spent time with the father in week one from after day care on Tuesday until the commencement of day care on Wednesday, from after day care on Thursday until 6.30 pm; and from after day care on Friday until 5.00 pm on Sunday and in week two from after day-care on Tuesday until the commencement of day care on Wednesday and from after day care on Thursday until 6.30 pm, as well as holidays and special occasions.
In February 2015 the mother was diagnosed with a major depression disorder.
In March and April 2015 the mother and child spent time in Germany. The mother’s contract with a government agency concluded on 30 June 2015.
In November 2015 the mother commenced proceedings to be allowed relocate to Germany with the child.
In February 2016 the child commenced full time primary school.
The parties have been engaged in conflict regarding child support for some years.
The Family Consultant set out a good background and detail of the then arrangements for the child, much of which was not controversial, namely:-[6]
1.[The mother] and [the father] have one child, [the child]. They separated in November 2012 and since that time [the child] has predominantly lived with her mother and spent time with her father on a progressive and frequent schedule.
2.[The mother] grew up and lived in Germany until she first came to Australia in March 2000 [perhaps 2002 - but little swings on this], to commence an internship … in Brisbane. From approximately 2002, [the mother] has lived in Australia apart from visiting Germany regularly and for periods of a number of months. Her mother, [the maternal grandmother] remains living in the town of [W] where [the mother] lived prior to coming to Australia. [The mother] reports a very close relationship with her mother and said that they speak on Skype on a daily basis. Over the last few years they have on alternate years spent time with each other in their respective countries of residence. [The mother] identifies as German and says that she had never intended to remain living in Australia.
3.[The mother] relocated with [the child] from Brisbane following the parents’ separation, to live in Canberra and take up employment. [The father] relocated to Canberra some months later so that he could continue a relationship and spend frequent time with [the child].
4.[The father] was born in [Country E], lived in New Zealand and settled in Brisbane in 2009. He identifies as Australian. His parents and his sister remain living in Brisbane. [The father] reports having a close relationship with his family and spends time with them on several occasions each year.
5.[The mother’s] contract with the [government agency] ended in the middle of last year [2015]. She has been unable to gain employment since that time. [The father] has been in full-time employment with [University X] from approximately August 2014, after a period of uncertain employment previously, following the completion of his PhD.
6.Two previous reports have been completed in this matter - the Children and Parents Issues Assessment in June 2013, and a full Family Report in May 2014. This report follows the terms of reference previously provided for the report in May 2014. The previous family report should be read in conjunction with this report.
[6] Family Report 5 April 2016 – paragraphs 1 to 8.
CURRENT ARRANGEMENTS FOR THE CHILD
7.[The child] lives with her mother and, since the beginning of this school year, her time with her father has increased from a schedule where she spent 4 nights each fortnight with him to 5 nights each fortnight. Specifically, her new routine is that she spends time with her father each alternate Tuesday afternoon; alternate weekends from swimming lessons on Friday afternoon until before school on Monday morning; and alternate overnights on Wednesday, until the commencement of school on Thursday morning. The parents share the parental responsibility of [the child].
8.[The child] will commence spending half of school holidays with her father from the upcoming school holidays. Prior to this holiday she has spent blocks of 4 days with him at specified times.
I am aware that there is a dispute regarding the move from Brisbane to Canberra, and I have accepted the mother’s evidence in that regard. Similarly, there is an issue about the bona fides of the mother’s endeavours to find alternative employment and on that issue I prefer and accept the evidence of the mother. As such the outline of the background and the then parenting arrangements accord with my findings of fact.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context.

THE EVIDENCE

The Mother

The mother provided evidence in accordance with her affidavits to which she refers in her list of documents relied upon[7] which included her affidavits:-
(a)filed 2 May 2016;
(b)filed 5 February 2016;
(c)filed 17 November 2015 (the annexures pages 66-238 were removed, although I understand that the relevant parts are included in a tender bundle); and
(d)filed 4 July 2014.
[7] Exhibit M6.
The mother was given leave to respond to the affidavit of the father’s expert, Ms T, who filed an affidavit on 23 May 2016 in relation to the mother’s ability to obtain employment.
The mother said that she had never spoken to Ms T nor had she been asked to speak to Ms T. She had no prior knowledge of that report being prepared.
As to a number of the jobs to which Ms T referred to in her evidence, the mother said:-
-    Job page 85 and 86 – research scientist. This work was not in her field and she would need a different PhD and a different undergraduate study.
-    Job page 88 to 89 – needs to travel interstate and given her circumstances that would not be available to her.
-    Job page 94 – laboratory assistant – the mother said she would need experience in that field which she did not have.
-    Job page 96 – nursery manager. The mother said she had done this work in the past and it was expressed that the mother would need to be physically fit and that given her current circumstances the heavy lifting and other heavy work she would not be able to do.
-    Job page 103 – The mother said she had applied for that job. No evidence was provided that she achieved that position.
The mother was cross-examined by counsel for the father for well over one full day.

She conceded that when the final orders were made on 31 July 2014 she was represented by senior counsel and competent solicitors and well understood the orders. I am satisfied that whilst the mother consented to final orders in July 2014 it remained her long term hope to be permitted to return to Germany to live full time. I do not think that it arose simply as a result of her cessation of employment in 2015, but has been something which has been a focus of her attention for some time and in that respect I note the comments on Ms Y’s notes:-[8]
Barrister pushed for consent orders till June [2015] when her contact finishes] then she has further ‘ammo’ ie. no job here
[8] Exhibit F5 - page 3.
The mother was cross-examined in relation to the timing of the change of her approach to equal shared parental responsibility and it was put to her that this arose after she saw the father’s case outline[9] and then she lodged her orders.[10]
[9] Exhibit F1.
[10] Exhibit M4.
I am satisfied that the mother had written to her solicitors the day before indicating that she was considering equal shared parental responsibility.[11]
[11] Exhibit M10 – email 18 May 2016.
The mother has extraordinary difficulties communicating with the father. She has not had face to face discussions with him for some time, although they communicate by email and by text. In her affidavit filed 17 November 2015 the mother set out the difficulties in communication and how that impacted upon her emotional well-being.[12]
[12] Affidavit of mother filed 17 November 2015 - paragraphs 13 to 50.
I generally accept the mother’s evidence in that regard. I accept that she becomes stressed and anxious and, having heard the evidence of the father and observed him in the witness box, I am satisfied that the father is aware of these anxieties and was aware that the mother did not wish to speak with him or have over-communication, yet he continued to do so being aware of the impact of that on the mother’s overall emotional well-being. The mother said in her trial affidavit:-
13. Since the Orders of 31 July 2014 my relationship with [the father] has not improved. I say it has deteriorated and his presence makes me feel uncomfortable. I find his attitude towards me overbearing, controlling and dictatorial. Nothing is simple with [the father]. There is always "drama". I particularise below.
The mother set out the problems, and I generally accept that evidence.[13] She gave evidence of the father’s inflexibly in terms of time, at other times secrecy in taking the child away from the ACT and his doggedness in terms of his views of the 31 July 2014 orders. Which evidence, I accept.[14]
[13] Ibid paragraphs 14 to 22.
[14] Ibid paragraphs 23 to 44.
The mother made it clear that she did not wish to leave the child. She was cross-examined in a robust way including terms such as ‘abandoning’ and the like.
The mother said that she may be forced to do so because of the circumstances in which she found herself. I accept the mother’s evidence that she raised with Ms L the possibility of travelling to Germany without the child as set out in her recollections of that meeting.[15]
[15] Exhibit M9.
I am satisfied that the mother is desperate to move to Germany. I do not believe she will leave the child, however I am concerned as to the impact on her mental health in forcing her to remain in Australia.
The mother asserts that she has been unable to find work in her field in Canberra. I accept the evidence that in her particular field there are limited opportunities in Australia, however, I accept that there are other opportunities available for her at levels lower than she would anticipate, having regard to her undergraduate qualifications and her doctorate.
One of the jobs suggested by Ms T was as a receptionist which, given all of the circumstances, would hardly assist her mental health. I am satisfied that the mother has looked for jobs, but has an underlying preference to move to and live in Germany. The mother was cross-examined in relation to the report from the employment expert, Ms T, and I am satisfied the mother endeavoured to be frank in terms of that evidence.
These proceedings have been extraordinarily onerous on each of the parties. The mother had spent, up to February 2016, about $147,000 in legal costs and this is likely to increase by $80,000 to $100,000 by the time this hearing is complete.
Much of that money was provided out of the limited capital available to the mother in Australia and the enormous support provided by the maternal grandmother from Germany. I accept the mother’s evidence in that regard.
The mother gave evidence that she travelled to Germany in November 2011 and then the father returned to Australia in January 2012. The mother returned to Australia in mid 2012. I accept her evidence that she was not aware of any Hague Convention proceedings but came back, reluctantly, on her own account. The delay arose out of a minor injury to the mother and her unhappiness at the thought of returning to Australia.
The mother accepts that the child has a good relationship with the father and is secure in his company. Further, she accepts that the father is bilingual, but not in German, and so it would be very difficult for him to relocate to Germany in particular Town W.
In cross-examination it was put to the mother that electronic communication may be difficult. I do not accept that assertion. I do accept, however, that electronic communication is no complete substitute for face to face time.
The depths of the mother’s despair and the impact on her emotions can be seen escalating in the various reports of Ms L, the Family Consultant. The mother receives cognitive behavioural therapy treatment from Dr R and also hypnotherapy. Hypnotherapy assists the mother and helps her relax.
There is evidence that the mother assisted Dr R in the preparation of the report which, at some levels, reduces the impact of that report. However, I am satisfied that the report reflects the professional view of Dr R.
I am not satisfied that the mother has worked or been employed and has not informed the Court of such work.
I accept the mother’s evidence that the parties have very limited ability to negotiate and that what has taken place has generally been through solicitors.
The mother proposes to live in a modest village which is about sixty kilometres from Munich. The mother endeavoured to provide evidence with regard to the cost of living in Germany as compared to Australia. I do not give any weight to that lay evidence, given the source, which may not have been reliable.
The mother was criticised for having a German credit card. There was no evidence that she used that card, which she expressed was there for an emergency. She had a borrowing capacity. The mother has retirement savings in Germany which, as at two years ago, had a value of about $44,000. The maternal grandmother has been maintaining those savings for the mother for her old age. In addition the mother has about $1,700 in Euros in Europe.
The mother gave evidence of the impact of accumulative emails, communications and the behaviours of the father. There were telephone calls which made her feel anxious in circumstances where she asked the father to stop. I accept her evidence in that regard.
I accept that the father, subsequent to the orders of July 2014, was regularly late when collecting the child and this also had an impact on the mother’s anxiety.
I accept her evidence about the poor communication set out in the mother’s November 2015 affidavit, in particular paragraphs 15 to 35, which predicates against equal shared parental responsibility. The father sent 197 emails to the mother between January 2014 and October 2014 and 141 emails from December 2014 to August 2015. There was other communication in the form of text and telephone some of which was wholly unnecessary. The mother endeavoured to minimise conflict and ignored non child related communication. She worked with Ms S in that regard. The father knew that the mother did not wish to talk with him, except in emergency situations, but he chose to do so in any event. I am satisfied that he has little regard for the impact of his behaviour on the mother and her ability to parent.
The mother provided evidence of the inflexible approached which the father adopted in the parenting arrangements. This included the additional dance class on Thursdays where the mother offered additional time and was threatened with contravention proceedings.
The mother acknowledges that she and the father have different parenting styles, and she is sensitive to the needs of the child. Her approach in terms of the child attending church with the father is sensible. The mother endeavoured to make arrangements for the child’s education and the parties, with some difficulty, negotiated those problems.
I accept that the mother endeavoured to tell the truth from her own subjective point of view. This is coloured by her visceral desire to return to Germany, which has been with her for many years. It has impacted on her in terms of her work, her enjoyment of life and in terms of her mental health.
Whilst there is no objective evidence about the current availability of work in her field in Germany, given the detail and otherwise reliable nature of her evidence, I accept that she is more likely to find gainful employment in Germany than Australia.
I am generally satisfied her evidence is reliable and that she endeavours to tell the truth.

Maternal grandmother, Ms O

Ms O is the child’s maternal grandmother (‘the maternal grandmother’) who provided evidence contained in her affidavits filed 5 February 2016 and 4 July 2014. That material was read into evidence.
The maternal grandmother gave evidence with the assistance of a German interpreter, although she understood English reasonably well. It was put to her that her affidavit was prepared by the mother. Whilst I find the mother assisted her with the affidavit, a fact which was conceded, I find that the affidavit is generally the views of the maternal grandmother.
The maternal grandmother has travelled to Australia on many occasions since 2000 and generally for periods of up to four weeks. The maternal grandmother has now retired and can spend longer periods of time with the mother, although her finances are strong but relatively modest.
I accept her evidence that she is able to provide greater financial and emotional assistance to the mother if the mother was living in Germany. The maternal grandmother has been strongly supportive of the mother and has provided emotional assistance as well as the financial assistance.
I accept her evidence as to the impact of living in Australia on the mother and the deterioration of the mother’s emotional and mental health. I accept, in particular, her assessment that the mother:-[16]
20.… is no longer the happy and cheerful soul she once was. It is painful and distressing to see and hear my daughter so distressed, isolated, feeling hopeless and alone. I try and remain positive, I say ‘[the mother], stay positive, things are not fixed, they always change. You and [the child] are the most important people and we will get through this together’. I am very stressed too and I find it difficult to sleep at times worrying about [the mother] in the current circumstances. I go for walks with my best friend, talk to other friends in my home town, go for a swim each week and work in my garden to distract me.
[16] Affidavit of maternal grandmother filed 5 February 2016 - paragraph 20.
The maternal grandmother provides evidence of life in Germany, like the mother, and like Ms F, these are somewhat ‘Pollyanna(ish)’.
There was a sustained attack in cross-examination on the credit of this witness. She clearly understood what was being said and her evidence was not seriously impeached. It was coloured, of course, in being in support of her daughter.
The maternal grandmother made a concession against her interest by saying that she believed the mother would stay with the child if she was not permitted to leave Australia.
The maternal grandmother said she was unlikely to provide the level of support into the future as she has in the past and I accept that evidence. She is a frank, straight forward witness whom I generally believe. The maternal grandmother is able to provide a home for the mother and the child in her village in Germany, being one or other of the two homes owned by the maternal grandmother.

Ms F

Ms F provided evidence contained in her affidavits filed 5 February 2016 and 4 July 2014. These affidavits were read in English. Ms F gave evidence via Skype from Germany. She spoke good English, although struggled with some words. She is the mother’s closest friend.
She provided some evidence of value in terms of the mother’s deteriorating mental health as a consequence of the events, but otherwise was a character reference of a friend of some 35 years.
Her evidence of life in Germany was somewhat romanticised and coloured by her support for the mother.

The father

The father provided evidence in accordance with his affidavits filed 4 July 2014, 2 March 2016 and 16 May 2016. That material was read into evidence.
The father was born in Country E and his ‘mother tongue’ is the language of that country, however he is bilingual as he has been speaking English since he commenced school.
The father emigrated from Country E to New Zealand in 1997 and he is a New Zealand citizen. He emigrated from New Zealand to Australia with his mother and his sister in February 2009. His father joined them a few months later. He has permanent residency in Australia.
The father pays $309 per fortnight by way of school fees and $385 per fortnight by way of child support.
In early 2015 the child support was assessed and there had been some delay and there were some arrears of child support of about $3,000 to $4,000. Since that time the father has reduced that child support liability by about $46 per fortnight. He became aware soon after June 2015 that the mother was unemployed, but has made no serious efforts to bring those arrears up to date.
The father was aggressive and disrespectful of the mother; he asserted that she lied in sworn evidence.[17] He was aware that the mother had sold her house and also must have been aware that she had incurred considerable legal costs. He was demeaning of the mother to the Child Support Agency and asserted that the mother was endeavouring to tarnish his reputation.[18]
[17] Exhibit M8 – mother’s bundle page 127.
[18] Exhibit M8 – mother’s bundle page 130.
Yet it was he who said in a letter to Dr K, a Paediatric fellow:-[19]
[The mother] herself has been to psychologists for her personal mental issues. [The mother’s] own state of mind is not right, this to me is more worrying than anything else because how can she be capable of assessing the child or assess whether [the child] has any psychological issues.
[19] Exhibit M11 – letter in reply to 13 July from the doctor.
This is in circumstances where the father deposed that he does not believe the mother has mental health issues and that her assertion of such issues is fabrication. It served no purpose other than to undermine what the mother says to the child’s paediatrician.
The child had suffered from Primary Encopresis and stool withholding. The mother adopted multiple strategies to deal with this condition.[20] The father’s response to the reports of Dr K was troubling.[21]
[20] Exhibit M12 – report from Dr K 18 February 2015.
[21] Exhibit M11.
Dr K opined that ‘parental animosity may be contributing to the situation’.[22] In response to that assertion the father said:-[23]
I would also like to point out that for [the mother] to talk about ‘animosity’ and to insinuate that I am a contributing factor to it, is very false and far from the truth.
[22] Exhibit M12 – report from Dr K 18 February 2015 - page 2.
[23] Exhibit M11.
The father blamed the mother in terms of her toilet training. He denies that he contributes to the animosity in which he certainly does contribute, and his replies in Exhibit M11 are indicative the animosity. There is his implicit criticism of the child’s treating paediatrician about her reference to ethnicity, where asserted that:-[24]
There’s definitely a genetically inherited condition of constipation passed on to [the child] through [the mother] and that is of more relevance than the so-called ‘animosity’ …
[24] Ibid – page 2.
I am not satisfied with the evidence of the father in this area and I prefer the evidence of the mother.[25] Given that evidence and these findings, I am satisfied that the mother was sensitive to the needs of the child with regard to the encopresis and the father was dismissive of it until confronted by the medical evidence. He was then confrontational and blaming of the specialist.
[25] Mother’s trial affidavit - paragraphs 71 to 76.
Having heard the father’s evidence in this area and others, it seems at times if facts do not fit within his narrative, the father will pursue his view and reject the other, and at times is critical of the messenger.
The father was unhappy with a decision of the Child Support Agency and he said of the decision maker:-[26]
[The decision maker] then said and I quote “well I am just paraphrasing”. After hearing this I really felt that [the decision maker] had not really looked into my application clearly let alone the financial statement and the financial declaration I have made in the application. Rather I felt he had made a pre-meditated decision based on his ignorant assumption that I simply “don’t want to pay for my child”.
[26] Exhibit M8 – mother’s tender bundle - page 150.
The father asserted that the mother ‘could have easily transferred funds to another Australian bank account or even her German bank accounts to conceal those funds to be eligible for child support …’[27]
[27] Ibid page 151 and 152.
I read the whole of the email or letter that comprise pages 150 and 151. I note that the father was aware at that time that the mother was not in paid employment and he believed that she did not intend to find work.
The father asserted to the Child Support Agency that the mother ‘has tried to keep the child away from him’. This was on 12 November 2014, shortly after the orders were made by consent and in circumstances where the mother was substantially complying with those orders.[28]
[28] Ibid page 151.
The father was concerned that the mother was using the child support money to fund trips to Germany. Given the very modest levels of child support paid by him and the arrears of child support that remark cannot be seriously sustained.
On hearing the evidence of the father it seems to me that at times he is dismissive of facts where those facts do not fit into his pre-conceived narrative about himself and the mother. He accepts what supports his views and stories. When the other side points out the apparent holes in his argument he attacks the messenger. There are a number of examples of this throughout his evidence.
One such example was in relation to the child having difficulty toilet training though 2015. The father’s view was that this problem, if it was a problem, was a ‘genetically inherited condition of constipation passed on to the child through the mother’[29] and that it is of more relevance than the so called ‘animosity’ allegation that [the mother] is portraying.[30]
[29] Exhibit M11.
[30] Exhibit M12.
In her evidence given to the Court the Family Consultant said of the child:-[31]
Question; And that’s basically what’s happening now?
Answer;Well, except that they at least show some coming together, on occasions. They don’t actually openly disagree in front of [the child]. But [the child] would pick up that there’s a tension between the two of them. I don’t know that – I think if they’re living in two different countries, she will certainly be well aware of that, as well.
Question;Certainly. But in terms of there being, for example, disputes in relation to schooling, disputes in relation to medical treatment, and the like, and I take it that you would agree that whether or not she’s aware of the specifics of the particular event that has given rise to an increase in the conflict from time to time, she’s certainly aware that it’s there; you would agree with that?
Answer;She’s certainly aware of the tension. I’m not sure – she’s only – she’s so little, it’s hard to know what she is – whether she’s aware that there’s conflict. She’s aware that there’s tension.
[31] Transcript of Proceedings dated 15 April 2016 - page 21.

When this was put to the father he observed that the Family Consultant had her view and that his view was that the parents’ tension or conflict had no impact on the child.
The father had told the Family Consultant and confirms that the child exhibits no ‘oppositional or tantrum like behaviour’ in his care. He says the child’s nature is such that if the mother asserts that the child exhibited such behaviour the mother would be being untruthful.
This gives rise to a number of possible outcomes. The first is that the father is being disingenuous in relation to his evidence, and that is a possibility given my assessment of the father’s frankness as a witness. Or alternatively, that if the father is telling the truth, that the child does not feel so secure or safe enough to actually show those behaviours in his presence. That second view was a possibility conceded by the Family Consultant.[32] However, given all of the evidence I am satisfied that the child feels safe and secure in the care of the mother, her primary caregiver.
[32] Transcript of Proceedings dated 15 April 2016 - page 18.
Another example of the father’s approach to evidence was in terms of the evidence he gave on 30 July 2014 where he made it clear to the Court and on oath that the mother was welcome to come along to the church events.[33] The mother came along on two occasions and on the second occasion there was some disharmony between the parents. The father said it was clear that the mother was only invited once. That evidence of the father in this respect is unreliable and cannot sit in any way squarely with what he said when under cross-examination on 30 July 2014.[34]
[33] Transcript of Proceedings dated 30 July 2014 - page 21.
[34] Ibid at pages 21 and 22.
The father’s evidence is at times troubling and self-serving, I will treat it with caution.

Father’s sister, Ms M

Ms M is the father’s sister and she provided evidence in terms of her affidavits filed 2 March 2016 and 4 July 2014. Ms M is a financial professional and assists the father from time to time.
Ms M lives with her mother (the paternal grandmother) in Brisbane in Queensland. The child is her only niece and she says she is close to the child. She travels regularly to Canberra and gave evidence of those visits to Canberra.
She is, and not unexpectedly, partisan to the father and his cause. She provided evidence of a strong relationship between the child and the father and a good relationship with herself. She has FaceTime with the child from time to time.
Ms M has provided financial assistance to the father and does not charge interest in relation to that assistance. She does not expect repayments although the father does, from time to time, make repayments. He has not done so since the recommencement of these proceedings.
Ms M gave evidence about the poor communication between the parents. She has not provided any assistance to the mother, again not unexpectedly, although, she is aware the mother has not been in employment for some time. Ms M has not spoken with the mother and said ‘I didn’t see the need to’. She has no feelings for the mother.
Ms M gave her evidence in a straight forward and direct way and was consistent. The evidence was not seriously impeached but is coloured in her alliance to the father.

Paternal grandmother, Mrs M

Mrs M is the child’s paternal grandmother. She provided evidence in accordance with her affidavits of 2 March 2016 and 4 April 2014. She lives in Brisbane with her daughter, Ms M.
She has visited Canberra on many occasions since 2014 and generally stays with her son. She has, on at least one occasion, walked past the mother and not acknowledged her and had no contact with the mother. She does not acknowledge her presence. She was and has remained angry and disappointed with the mother and, despite her evidence, I am satisfied that she is unlikely to be supportive of the mother in any way.
The paternal grandmother said the mother could come to the church and ‘learn about God’. Yet when she came to a church the paternal grandmother did not look at her nor say hello. She is unlikely to foster a relationship between the child and the mother. She is wholly partisan with the father.
The paternal grandmother denied that she put her hands up to her face on one occasion as asserted by the mother. I need not make a finding in this regard as it is clear that the paternal grandmother has little time for the mother.
She has provided financial assistance to the father. The paternal grandmother acknowledges that the mother is the primary care giver of the child.

Mr V

Mr V is a forensic psychologist with many years of practice with a strong academic background including a Bachelor of Arts and a Bachelor of Psychology (Honours). He was appointed a single expert to assess the mental health of the mother in terms of these proceedings. His report dated 8 March 2016 was read into evidence and there was no challenge to his qualifications.
He has assessed the mother and diagnosed her has having a Major Depressive Disorder single episode. Her current episode moderate to severe. He says of her episode that:-[35]
[The mother] experiences a racing of thoughts, psychomotor agitation, and finds herself more sleepless, irritable, and anxious than say melancholic depression. She reported symptoms of low mood and a sense of worthlessness, loss of interest/pleasure, thoughts of suicide and changes in her appetite and weight. Her concentration also reportedly suffered.
[35] Mr V’s Report dated 8 March 2016 - page 3.
He says that this mental health condition is presently moderate-severe and it has some impact on her parenting. Mr V said that this illness is a very common psychological illness and has a good response to treatment in most cases when treated with evidence based therapy. The recommendation was that she undergoes treatment such as Cognitive-Behaviour Therapy and Acceptance and Commitment therapy. He said:-[36]
6.5At this point of time, Cognitive Behavioural Therapy and Commitment Therapy show a good outcome rate in resolving depressive episodes, however Schema Therapy has a very good outcome rate as well as relapse prevention effect, and has been shown to be specifically useful in individuals with a history of childhood trauma, and the personality features that I have previously outlined.
6.6What behaviours (if any) will he recommend that the applicant mother adopt to assist her to recover from any mental illnesses/or conditions/s from which he concludes she is suffering;
It was discussed in the interview as to whether [the mother] had made a concerted effort to become socially connected while in Australia. It appears that while she has made some attempts to engage with parents of [the child’s] friends, as well as work colleagues, she has been somewhat defeatist in this regard and stated “you know, they have families and their own lives. They are busy”.
The focus of being employed in an area specifically related to her qualifications and expertise could also be relaxed as she quoted financial stress as being a contributor to her mental health difficulties. While it seems from information provided that she is likely to obtain more rewarding or intellectually stimulating employment in Germany within her field, there are also opportunities within Australia which in the short-term would relieve isolation, some financial stress, and give her some structure and purpose to her daily life.
[36] Ibid page 4.
Mr V went on to say that as to Dr R’s report, he had:-[37]
There are no major objections to Dr [R’s] diagnostic processes, as I believe we agreed upon the diagnosis of Major Depressive Disorder. As will most likely be evident to the court and parties involved, there are some distinct differences in style and brevity of assessment reporting between myself and Dr [R]. At no stage did I entertain the notion of PTSD as a possible diagnosis because [the mother] did not disclose any physical or sexual violence in any of her relationships that meet that criterion.
[37] Ibid at page 4.
Mr V said that the mother’s depression was treatable but was essentially untreated. I do not wholly accept that view as there is evidence that the mother is taking treatment through Ms Y and over a period of time, including hypnotherapy and cognitive behavioural therapy. She has on one or two occasions seen psychiatrist, Dr N. What is problematic in this case is that the mother has been desperate to return to live in Germany for many years. She has seen a number of health care professionals and has tried to accommodate remaining in Australia (order 31 July 2014) but these have not resolved her underlying misery and despair. What Mr V suggests is that other treatment (the gold standard) be applied in the hope that it works, leaving the mother and consequently the child at risk if it does not.

Ms Y

Ms Y is a registered psychologist, whose curriculum vitae was annexed to her affidavit.[38] She is the mother’s treating psychologist and has treated the mother over 21 sessions as at October 2015. She has applied treatment such as hypnotherapy, cognitive behavioural therapy and assistance to the mother in managing her crying, including controlled crying. Ms Y’s evidence was contained in her affidavit of 17 November 2015, which was read into evidence.
[38] Filed 17 November 2015.
The mother first consulted Ms Y in November 2013 and has seen her on a number of occasions particularly over 2014. Ms Y concluded:-[39]
2.1[The mother] has been mentally preparing for the possibility that her stay in Australia might be extended, and to this end has managed to create a life for herself and [the child] in Canberra. It has been a difficult endeavour, emotionally and financially (especially since her employment ceased). Her employment has to some extent been supported by the prospect that this might be a temporary situation. If she were to be prevented from relocating to Germany, the finality of that decision will undoubtedly constitute a major challenge for her health and well-being. There is research evidence that the various characteristics noticeable in the way depressed individuals think and act seem to be passed on to their children. Furthermore, the potentially impoverished lifestyle that [the mother] would be able to provide for [the child] in Canberra seemed in stark contrast to what life in Germany would offer.
2.2I am concerned that [the child] could miss out on the best aspects of her mother’s multifaceted personality if she were required to stay here. Physically, emotionally, educationally, financially and socially the lives of [the mother] and her daughter would be enhanced by being able to move to Germany in my opinion.
[39] Ibid - page 15 paragraphs 2.1 and 2.2
I accept her evidence that if the mother is prevented from returning to Germany it would present a major challenge to the mother’s heath given the diagnosis of the mother.
I accept that Ms Y in treating the mother has become somewhat aligned to her, as is perhaps the role of treating psychologists in allowing patients to tell their stories and reflect upon them. This witness is well regarded as a therapist in the Canberra area and has had a long professional history with the mother. I give no weight to her evidence outside the scope of her treatment and assessment of the mother. I give her assessment of the mother and the symptoms that she has displayed reasonable weight.
Counsel for the father was critical of Ms Y’s evidence
He submitted that her objectivity had to be questioned, since she adopted the mother’s view of the father in particular that the father was “a self centred man who was unwilling or unable to approach co-parenting in a cooperative manner”. That assessment was a reflection of the mother’s view considered by her therapeutic treater, which is different from a forensic reporter. In this case on all of the evidence I was in any event satisfied that the father was at times self-centred and was unwilling or unable to co-parenting in a cooperative manner
Given the nature of the report and the work undertaken I do not impeach the report as suggested by the father’s counsel. I am satisfied that Ms Y merely treated the mother and listened to her concerns and treated her with the crying therapy, some cognitive behavioural therapy and hypnotherapy. Her report did at time reflect beyond her treatment, but in the context as set out earlier. It is subjective given that context.
I am concerned as to the profound impact that may by afflicted the on the mother, and consequently the child, if the mother was to remain in Australia.

Dr R

Dr R is a clinical psychologist who provided a provided an adversarial forensic report at the request of the mother. The lengthy report was annexed to Dr R’s affidavit filed 18 December 2015 and read into evidence.
However, there was criticism in relation to Dr R’s methodology in terms of forwarding the completed report to the mother and inviting her to make comments in relation to it.
In considering the weight to be given to the report I have had regard to the emails passing between the mother and Dr R,[40] which given the providence of the report must and does have the effect of undermining its probative value. I was asked to reject it or have regard to limited parts of it.
[40] Exhibit F4.
Issues arise out of the interference. Some six months after the report was prepared the mother requested many ‘additions, deletions, corrections etc’ such as would involve significant work on behalf of Dr R,[41] which predicates against equal shared parental responsibility
[41] Exhibit F4 - page 57 - email 14 December 2015.
It would be understandable and acceptable if an expert wrote to a party and sought confirmation as to a history they had provided, however it is troubling in the broader context of the whole report, including the conclusions and recommendations. This is particularly so in this case where the documents showing what additions, deletions, corrections et cetera were sought was not provided.
There was a challenge in terms of the nature of her report. This seems to fall into at least two areas, firstly that the mother and Dr R are in a friendly relationship which could colour the report, and secondly, the mother has been significantly involved in reading and checking the report.
The report seems to fall into two parts: the first is the psychological report following an assessment in February 2015 and which was revised (corrected) in December 2015. The mother was significantly involved in making suggestions and exerted significant pressure on Dr R in relation to the report.
The conclusion of Dr R was that the mother suffered a major depressive disorder. This appears not to be in issue and I accept that this is the case.
Dr R also diagnosed the mother as suffering from post-traumatic stress disorder and complex post-traumatic stress disorder. That is inconsistent with the view of Mr V and I prefer the evidence of Mr V.
I accept that the mother suffers anxiety in terms of her interaction with the father and this is one of the factors in her mental health condition and which was addressed by Dr R.
There was a complaint on behalf of the father that Dr R and the mother had become too close. I reject that submission or implication. It seems to have arisen in a number of areas, the first were a number of references made by the mother to Dr R in relation to the birth of a grandchild.[42] In addition there was a complaint that this expert knew about the mother’s overseas trip. This need to be seen in context. The report was commissioned in February shortly before the mother travelled to Germany for about six weeks.
[42] Exhibit F4 - pages 29 and 34.
Dr R was aware of the trip and aware that the mother had responded. Shortly after the mother arrived back from overseas, in late April 2015, she sought information about the status of the report. Dr R wrote that she would do the report as soon as she could but she was going to be away for a few days and gave a reason, that is, that she was travelling for the birth of a grandchild. The mother then made the comments to which I have alluded earlier. This may be of somewhat overly familiar behaviour of the mother, but certainly not of Dr R.
Dr R concluded that the mother’s symptoms are related predominantly to the fact that she is not able to return to Germany and has a sense of displacement. Given the context of that report I gave that conclusion little weight, although I am, based on other evidence, entitled to come to similar conclusion and I do so.
Dr R was criticised in relation to a second communication which was the request for an advanced diagnosis. The mother had initially suggested a diagnosis of post-traumatic stress disorder and Dr R quite properly declined to do so until she had time to consider that circumstance.[43] In May of 2015 the mother pressed for the report and Dr R explained that she was unable to complete it due to her illness. In December 2015, after the mother had provided suggestions to the report, Dr R was pressed for provision of the report, but was unable to do so in accordance with the mother’s timetable given some other medical issues. I am not satisfied that there were any issues of closeness in relation to the provision of the first report, but simply issues of getting the work done and explaining the circumstances of any delay.
[43] Exhibit F4 page 30.
As to the second report[44] it was a strange report to request. It invited Dr R to see the mother with the child and report on it. The providence of that instruction was not particularly clear, however, fortunately, that part of the investigation did not proceed.
[44] Report 10 October 2015.

Ms T

The father commissioned adversarial reports from Ms T, a rehabilitation consultant and psychologist. She provided a report dated 19 May 2016, which was attached to her affidavit filed 23 May 2016. She provided a supplementary report dated 29 June 2016 which was attached to her affidavit filed 7 July 2016. The affidavits and consequently the reports were read into evidence.
The expert was said to have carried out a detailed vocational assessment of the mother insofar as her skills related to Australia. She concluded that ‘If the mother undertakes [certain] steps, and is prepared to take a job below desired level [emphasis added], her prospects of, and her competitiveness in obtaining employment appropriate to her skills and experience within the next two years will be quite strong and she is expected to be able to secure new employment well within a two year timeframe’.[45]
[45] Affidavit of Ms T - page 79 (page 27 of report).
She went on to say that:-
As there is a plethora of roles within the field of Reception and Customer Service Representative within the ACT region, should her resume reflect the requirements of these roles without appearing overqualified, she is not anticipated to experience any significant barriers to redeployment.
It seems that Ms T suggested that the mother ought not promote or highlight her training and qualification that reflect a long period of study, experience and perhaps her PhD, so that she could get a job as a receptionist or the like.
In her supplementary report Ms T indicated that she had read some expert reports and that they did not cause her to revise her earlier opinion.
In oral evidence Ms T said that she was impressed by the mother’s efforts to obtain employment. Ms T had never met the mother.
The mother gave evidence, which I accept, as to her unsuitably to undertake some of the work suggested by Ms T.
It was submitted to me that there was is no objective evidence upon which the Court could find that she is more likely to find gainful employment in Germany than Australia and that the mother’s evidence to that end was self-serving. I reject that submission. The mother has set out in detail the work she sought in Australia and Germany, including the job that the she was offered in Germany. I am satisfied that the mother has much greater chance of obtaining work, commensurate with her level of her education, in Germany than in the ACT. If the mother is required to ‘not appear overqualified’ and obtain employment below her desired level, given all of the evidence, I am satisfied that this will have some adverse impact on her mental health and her parenting of the child.

Counsel for the father submitted that only a change of primary residence to the father will enable finality particularly now that, in the father’s view, the mother endorsed him as a primary carer. I do not accept that to be the case, given the comments I have made elsewhere. I am satisfied that once settled in Germany the proceedings will conclude.
The mother gave evidence about controlled crying, although said at times that she has difficulty containing this to times when the child is not present. I accept that the mother finds it difficult to laugh and has no genuine contentment or joy in life. I am satisfied that if the mother is not permitted to relocate to Germany her health is likely to deteriorate and her financial circumstances and contact with her family and friends in Germany will remain impoverished.
I am satisfied that the mother is and has been the primary carer of the child since the child’s birth. The father has been and continues to be significantly involved in the child’s life.
The mother has a mental illness which she is endeavouring to treat in Australia. The father was and perhaps still is sceptical about the mother’s mental health, although counsel for the father conceded the illness during the course of the trial. I am satisfied that the mother’s mental health is as I discussed earlier and that it has a profound impact upon her, particularly in her circumstances of living in Australia.
The mother has expressed a deep desire to live in Germany since around the time of the child’s birth and believes that the father consented to her living in Germany, but has resiled from that consent. The father admits he consented to permanent residence in Germany but this it was either though duress or in different circumstances.
The mother is unemployed and has made efforts to find employment in the form of the work which she had trained for in Australia. She has been unable to find such work. There may be other less meaningful employment available to her. The mother is likely to find employment in the area in which she seeks close to where she proposes to live in Germany.
The mother presently lives in Canberra and relies upon the social safety net to survive together with child support. I reiterate my earlier remarks about the father and child support.
No expert legal evidence was adduced by either party as to the ease or otherwise of the father moving to Germany, although the mother did give some evidence. I accept that the father does not speak German, and has no connections in Germany, at this stage, and that there are significant obstacles to that move. For the father to obtain employment in Germany it would take some time, money and determination. It would be hard for him to again re-establish himself in a different country with a different language. He may need to live outside of Germany for some period of time and would need to set himself up in a country where he would need to learn a new language and a new culture.
The movement of the child’s principal residence from Australia to Germany would have a profound impact upon the relationship between the father and the child. The child would spend regular time in Australia during school holidays and it would be open for the father to travel to Germany to see the child.
The father could communicate with the child electronically through Skype, FaceTime or the like, but this would be challenging to maintain the same close relationship as exists between the father and the child at the present time.
The mother wishes to continue in her role as the primary carer of the child, but struggles to see how she can do it given her deep sadness and her real and long term determination to live in Germany.
It is likely that a determination by this Court refusing permission for the child to relocate with the mother to Germany would have an adverse impact on the mother’s health.
What, then, are the options?
The mother’s case is that she would live in Germany and would maintain the child’s relationship with the father. I am satisfied that the mother would do so given that the child has a close relationship with the father at the present time. Despite the high levels of conflict between the parties, the mother has not sabotaged that relationship and I am satisfied she would facilitate it into the future, including trips to Australia and including regular electronic communication.
It is possible but unlikely that the father would move to Germany. For the purpose of this determination, I have assumed that this would not occur.
The relationship between the child and the father could diminish given the distances that they are apart. It is also likely that the child’s language may become German, although I am satisfied, given the evidence of the mother and the mother’s ability to speak English, that the child would continue to speak English and is likely to be bilingual, as is the father although with only English as their common language.
If the mother were permitted to relocate to Germany with the child she would more likely than not obtain employment in the area in which she is trained and would have a much better lifestyle than that under which she exists at the present time. She would live in a house provided by her mother and is, in my view, likely to be much happier and better settled in life.
Given that the mother has sought and undertaken treatment for her depression, I am satisfied that this would continue and given the evidence that it is likely to be well managed into the future.
The second option is to dismiss the mother’s application and leave the circumstances substantially as they are currently, that is for the child to be primarily with the mother and spend significant and substantial time with the father and this time increasing over the time.
That would enable the child to have a close relationship with each of the parents and would be a continuation of the current arrangements.
I am satisfied that it would lead to more time being spent between the child and the father.
I find that the mother is likely to continue with that determination to return to Germany and that she will continue to be sad and that this is likely to impact upon her mental health, her financial circumstance and social interaction. The mother is unlikely to obtain employment in the field that she wants and would need to obtain employment in other fields and/or re-train. Given the circumstances I am satisfied that she is unlikely to be content in her employment and is unlikely to be content in Australia.
She is likely to remain desperately unhappy and continue with her long term desire to live in Germany.
This may have a profound impact on her mental health and it may be that it undermines her capacity as the full time carer of the child.
The mother is unlikely to receive any personal support or assistance from the father or his family. They do not like the mother and have offered no meaningful support to her since separation.
The communication between the mother and the father is tenuous and conducted through emails, texts and the like. Much of their communication has gone through solicitors.
The mother will need to rehouse herself and her housing arrangements would be less satisfactory in Australia than they would be in Germany.
The level of overt conflict between the parties would continue such as that when the mother went to the father’s church one Sunday and the father purported to limit the mother’s ability to attend at that service despite what he had said in the proceedings before the Deputy Chief Justice.
There is likely to be a continuation of the conflict between the parents in terms of their relative spiritual views.
The mother cannot rely upon the father being reliable in terms of child support given the events since the assessment was made and his continuation of leaving the child support in arrears despite the mother’s obvious financial distress.
The third possibility is that sought by the father, which is to move the child from the mother’s primary care to his. This seems primarily based upon the mother’s declaration that she does not know if she can cope with a decision adverse to that which she seeks.
It seems that the father’s case is that given that circumstance it is perhaps likely to happen and as such, the child would be better settled into his care so that if and when it does happen and the mother moves back to Germany it would not impact as badly upon the child.
The underlying premise of this approach by the father is that the mother will not cope with a decision which does not permit her to return to Germany and there is a likelihood that the mother’s ability to parent would diminish or even end with the mother returning to Germany at some later stage.
I am thus able to infer that the father accepts the depths of the mother’s despair and unhappiness if she is not enabled to return to Germany.
Given the antipathy the father has shown to the mother and his lack of sensitivity to the mother and her circumstances, the antipathy shown to the mother by the paternal grandmother and, to a lesser level, the paternal aunt, I am not satisfied that the father would encourage a relationship between the child and the mother.
Given the evidence before me I am satisfied that if the child were left primarily in the care of the father that the mother would be slowly and inexorably excluded from the child’s life and her family. That would not be the case if the child was left primarily in the mother’s care.
As a consequence that option is one which I have specifically considered and, in the pantheon of options available.
In coming to the determination in this matter, I do not wholly accept the evidence of the Family Consultant as to the profound impact upon the child with a change the child’s primary carer at this stage. I am not convinced that in the light of all of the evidence, the child’s relationship with the father is likely to be compromised as considered by the Family Consultant if the mother relocates. I am concerned that any change of residence to the father would have a profound negative impact on the child and undermine the relationship between her and the mother.
I reiterate that I am concerned that the father is cold and in many ways uncaring of the child’s relationship with the mother. Some examples of this include the father’s approach to the mother attending church when the child was present, the father’s insensitivity towards the mother’s current circumstances in particular his failure to bring arrears of child support up to date when he clearly has some capacity to do so and the father’s scepticism and, perhaps earlier, rejection of the mother’s mental health concerns. I reiterate what I have said elsewhere in these reasons.
There is little that can be done to seriously ameliorate these concerns. The father’s approach in respect of the child suffering from encopresis where the Family Consultant observed at paragraph 47 of her April 2016 report:-
47. [The mother] claims that [the child’s] toileting problems highlight the parents’ inability to co-parent. She considers that the father has not acted appropriately in this matter and for the wellbeing of [‘the child’]. [‘The child’] has reportedly suffered from diagnosed “primary encopresis”. [‘The mother’] alleges that [the child’s] treatment and recovery from this disorder has stalled because of the father’s reported failure to facilitate treatment while [the child] has been in his care. The mother contends that, during the period earlier last year that she and [the child] were in Germany, staying with her mother, the toileting issues were addressed and mostly resolved but on [the child’s] return to Australia she has had some lapses in her toileting which [‘the mother’] attributes to the conflictual and uncooperative environment between [the child’s] parents.
As such I find that the child had the illness described in the family report and that the mother endeavoured to deal with that. I am satisfied that the father was insensitive to the issue and the child’s circumstances at pre-school. The father endeavoured to blame the mother and her mental illness and expressed a view that it arose out of some sort of genetic disorder from the mother’s side. The father’s aggressive and dismissive emails to the child’s treating paediatrician were telling.
I also accept the evidence of the mother that the father had unnecessarily threatened contravention proceedings and was slow in signing documentation to allow the mother to travel to Germany, this in circumstances when he was aware how important that was to the mother.
In terms of encouraging the relationship, the statements made by the father to the Family Consultant at paragraph 49 of the most recent family report set out:-
49. [The father] was asked what [the child] thought of her parents’ relationship and said, “I don’t talk to her about [the mother].” For example he said that [the child] does not talk much about her time at her mother’s home but occasionally things come up in conversation and he responds to what [‘the child’] says by acknowledging what she has said but not questioning her for details. He said however he believes that [the mother] questions [‘the child’] about her time with her father and then the details appear in court affidavits. For example, he said that on one occasion [‘the child’] had complained of a headache while she was with him and he administered child Panadol to her. He said that it had “escaped his mind” to tell her mother that [‘the child’] had this medication and he had received an SMS message from [the mother] berating him for not having told her about it. He said that this information had then appeared in an affidavit.
That the child does not discuss her mother, her primary carer, at the father’s home is at some levels troubling.
In terms of a change of residence, this was a factor considered by the Family Consultant when she gave evidence on the second last day of the hearing. This was based upon a limited assessment of the evidence provided to her by counsel for the father. I had the advantage of hearing all of the evidence and I am not satisfied with the view of the Family Consultant in that regard and with that limited evidence can be given significant weight. I accept the final submissions by senior counsel for the mother in that respect.
I am not satisfied that it would be in the best interests for the primary residence of the child to be changed to the father.
The mother proposes to bring the child to Australia for four weeks each year either during the long mid-year European holiday or around the Christmas holiday. She will meet half of the cost of bringing the child to Australia and meet her own expenses. It is open to the father, who enjoys a good income, to travel to Germany for four weeks per year. This will give the child exposure to the father for some eight weeks per year plus regular electronic communication.
Given the relationship between the child and the father I am confident that it will subsist and possibly flourish notwithstanding those circumstances.
The child will be aged six and a half when she relocates to Germany, presumably in January 2017. As indicated by the Family Consultant, the relationship between the child and her father is of a positive nature. The evidence is that it would be difficult, although not impossible, for the father to move to Germany. It would impose an enormous pressure upon him having to learn another language and seek employment in that country in that language.
Counsel for the father asserted that he is not toxic in his attitude to the mother. I agree that the word ‘toxic’ is too strong a word. However he is insensitive, dismissive and hostile to the mother.
Senior counsel for the mother took me to the principles set out in Taylor & Barker (2007) 37 Fam LR 461 which dealt with the mother’s happiness and contentment as a significant matter because of its impact upon the child’s happiness and contentment. The Full Court said in respect to the weight that his Honour placed upon the mother’s happiness and contentment:-[60]
It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case. Thus there is no substance in any aspect of Ground 3.
[60] At paragraph 113.
The mother’s happiness is also a significant feature in this finely balanced case and is a factor to which I have attached some weight.
I find that it is in the child’s best interests for the child to be able to relocate to Germany and conversely that it is not in the child’s best interests to remain in Australia.
Given all of these circumstances, I propose to leave the child in the primary care of the mother and I determine that it is in the child’s best interests for the child to be able to relocate Germany and that it is not in the child’s best interests to remain in Australia.
This will relocation will be permitted to occur after 7 January 2017 for a number of reasons. The child is currently attending school and these orders should enable the child to complete her education until the end of the current school year. The school year in Germany has already commenced and would be well advanced in any event. It will enable the father and child to spend time together over the first half of the 2016/2017 Christmas/New Year period.
This will enable an orderly transition for the child from Australia to Germany and will enable the father to have time to consider, if and how he can make arrangements to live near the child in Germany should he choose to do so.
I propose to put in place orders that the child spend not less than four weeks in Australia each year and that the child can spend time with the father should he go to Germany and the Court makes orders providing for regular time between the father and the child should he decide to relocate to Germany.
In coming to this determination I considered the impact of the change and the geographic distance between the father and the child. I considered whether an equal time arrangement in Australia would operate and, given the matters to which I have alluded elsewhere, I am not satisfied that it could operate in the best interests of this child given her age, maturity and the nature of the conflict between the parents.
Similarly I considered significant and substantial time. That may come if the father moves closer to the mother’s home in Germany, however, given the matters to which I have alluded to elsewhere I am not satisfied that such an order ought to be made at this time.
I have made provision for recognition of these orders pursuant to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 although the recognition of that order is not a pre-condition of the relocation.
Each of the parties seeks an order for equal shared parental responsibility in the circumstances of the orders I will make.
I am not entirely sanguine about this course given the poor nature of the relationship between the parties. However, it is the request of the parties and given the distance and hard work necessary to enable the relationship between the father and the child to continue and hopefully flourish, equal share parenting may assist in this process.

I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 September 2016.

Associate:

Date: 23 September 2016

[2016] FamCA 812

23 September 2016

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Family Law

Civil Procedure

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