FAMILY COURT OF AUSTRALIA
| OLMOS & RADEV | [2020] FamCA 248 |
| FAMILY LAW – CHILDREN – Best Interests – Relocation – Where application by mother to relocate the child’s primary residence from a regional area to Sydney – Where consideration of applicable principles – Where consideration of the parties’ competing proposals – Where consideration of the child’s best interests – Where orders made allowing the mother to relocate the child’s residence to Sydney. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Asher & Wilkinson [2020] FamCAFC 44 B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755 D & SV (2003) FLC 93-137 Goode & Goode (2006) FLC 93-286 G & C [2006] FamCA 994 Malcolm & Monroe and Anor (2011) FLC 93-460 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343 MRR v GRR [2010] HCA 4 Taylor & Barker (2007) 37 Fam LR 461 |
| APPLICANT: | Mr Olmos |
| RESPONDENT: | Ms Radev |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Thompson |
| FILE NUMBER: | PAC | 843 | of | 2015 |
| DATE DELIVERED: | 17 April 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 28, 29, 30, 31 January 2020 and 3 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Barnett |
| SOLICITOR FOR THE APPLICANT: | McIntosh McPhillamy & Co Legal Services |
| COUNSEL FOR THE RESPONDENT: | Mr Wong |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Webb |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Thompson of Thompson Madden Solicitors |
Orders
That the mother and father have equal shared parental responsibility for the child X born … 2010.
That the said child live with the mother.
That the mother be at liberty to relocate the child’s residence to Sydney.
That the child spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)During the child’s school term time each alternate weekend commencing on the first weekend after the resumption of school term from after school Friday or 3.30 pm if not a school day until 7.00 pm Sunday;
(b)That for the purposes of the child’s time with the father during the school term, the father shall collect the child from school if a school day or from the mother’s residence if not a school day provided always:
(i)That should the father elect he may notify the mother by no later than 48 hours before the commencement of the child’s time with him that changeover will take place at a location in Town C at 6.00 pm; and
(ii)That should the father elect he may notify the mother by no later than 48 hours before the end of the child’s time with him that changeover will take place at a location in Town C at 6.00 pm.
(c)That should the father choose to travel to Sydney for the purposes of time with the child during the school term otherwise than provided above, the child shall spend time with the father as agreed between the mother and father in writing and in default of agreement from after school Friday until before school Monday on not more than two occasions each school term provided always that the father provide to the mother not less than 14 days’ notice in writing of his intention to spend such time with the child.
(d)That during the child school holiday periods the child will spend time with the father as agreed between the parties in writing and in default of agreement as follows:
(i)for the whole of the school holiday period at the conclusion of Term One from 11.00 am on the first Saturday of such school holiday period until 7.00 pm on the Saturday before the resumption of school term and for the purposes of the child’s time with the father the father shall collect the child from the mother’s residence at the commencement of such time and the mother shall collect the child from the father at a location in Town C at the conclusion of such time.
(ii)for half of the child’s school holiday periods at the conclusion of school terms two and three being the first half in even‑numbered years and the second half in odd‑numbered years with the first half to commence at 11.00 am on the first Saturday of such school holiday period and conclude at 5.00 pm on the second Sunday of such school holiday period and with the second half to commence at 11.00 am on the second Sunday of such school holiday period and conclude at 5.00 pm on the day prior to the resumption of school term with changeovers to be effected at a location in Town C.
(iii)for half of the child’s school holiday period at the conclusion of school Term Four being the first half in each even-numbered year commencing at 11.00 am on the day following the conclusion of school term and concluding at 5.00 pm on the day nearest to the midpoint of the holiday period and being the second half in each odd-numbered year commencing at 11.00 am on the day nearest the midpoint of the holiday period and concluding at 5.00 pm on the Saturday before the resumption of school term with changeovers to be effected at a location in Town C.
That the orders for the child’s time with the father as provided for above shall be subject to the following orders:
(a)that the child shall spend time with the father each Father’s Day weekend, if not otherwise spending time with the father, in substitution for the weekend time provided for in Order 4(a) above being the weekend time immediately before the Father’s Day weekend and provided always that the father’s weekend time as provided for in Order 4(a) above shall be suspended on the Mother’s Day weekend with the child, otherwise, to spend time with the father in substitution for such weekend on the weekend immediately before Mother’s Day.
(b)that in the event that the Easter festive period does not fall within the father’s time the child shall spend time with the father in each even-numbered year from 10.00 am Good Friday to 5.00 pm Easter Sunday and in each odd‑numbered year with the father from 10.00 am Easter Sunday to 5.00 pm Easter Monday with changeovers to be effected at a location in Town C.
That the parent with whom the child is not spending time shall be at liberty to communicate with the child via electronic communication including telephone and/or FaceTime or such like at 6.00 pm each Tuesday and Thursday with that parent to initiate such communication and the parent with whom the child is spending time ensuring that the child is available for such communication.
That the mother and father be permitted to take the child X born … 2010 out of Australia on holidays during time that the child is due to be spending time with that parent during the child’s school holiday periods provided that the other parent is provided with written notification of the holiday at least one month prior to departure with such notification including dates of departure from and return to Australia, copy of the travel itinerary provided by the travel agent or airline, copy of return airline ticket and details of how the child may be contacted whilst absent from Australia by telephone and/or other electronic communication.
That the mother and father are authorised by reason of this order to obtain all reasonable information as would normally be available to a parent from any professional, body or organisation that holds information about the child including but not limited to doctors, health practitioners, hospitals, schools and sporting associations.
That the mother and father shall as soon as practicable notify the other in the event that the child is required to attend upon a medical practitioner or hospital for any reason and, if practicable, notify the other not less than 24 hours prior to any such appointment or attendance.
That the mother and father shall as soon as practicable notify the other as to any significant health issue concerning the child that occurs when the child is spending time with either of them.
That the mother and father shall be and are hereby restrained from denigrating the other parent or a member of his or her household to or in the presence of the child and shall use their best endeavours to restrain any other person from doing so.
That the mother and father shall keep the other informed of his or her current landline and mobile telephone number, email address and residential address and advise the other of any change in respect to same within 24 hours.
That the mother shall as soon as practicable enrol and complete a post separation parenting course approved by the Independent Children’s Lawyer and provide to the Independent Children’s Lawyer a certificate of satisfactory completion of that course within six months from the date of these orders.
That the mother and father shall within 14 days from the date of these orders do all things necessary to obtain a referral from a general practitioner to facilitate the child attending upon a child psychologist with the mother and father to facilitate the child’s continuing attendance for such therapeutic intervention as may be deemed necessary by the psychologist and for the purposes of this order the Independent Children’s Lawyer is at liberty to provide to the psychologist a copy of the Single Expert Report from Dr D.
That the mother and the father within 14 days from the date of these orders do all things necessary to obtain from the general practitioner a referral to a family therapist/psychologist for the purposes of ongoing intervention, in particular, in relation to the nature of their relationship and poor communication with such therapist to be either a therapist upon which they will both attend or individual therapists as recommended by the general practitioner and for the purposes of this order the Independent Children’s Lawyer is at liberty to provide to such therapists/psychologists a copy of the Single Expert Report from Dr D.
That the mother and father shall within seven days from this date sign all necessary directions and authorities as provided to them by the Independent Children’s Lawyer such as to authorise and permit the Independent Children’s Lawyer to communicate with the therapists and/or psychologists appointed pursuant to the previous orders and such as to facilitate the Independent Children’s Lawyer obtaining all necessary information from the said therapists and/or psychologists as to the parties’ engagement with the health practitioner, progress of therapy and/or intervention and any recommendations for intervention or treatment by such health practitioner.
That for the purpose of the previous orders, the appointment of the Independent Children’s Lawyer shall continue for a period of 12 months from the date of these orders and at the expiration of that time, in the absence of any application by the Independent Children’s Lawyer, the Independent Children’s Lawyer’s appointment be discharged.
That the Independent Children’s Lawyer shall have liberty to relist these proceedings as to implementation or enforcement of these orders by application to the Court in chambers in appropriate circumstances.
That any application for costs incurred to date by the Independent Children’s Lawyer be made by way of written submission by the Independent Children’s Lawyer within 14 days from the date of these orders with either party to respond by way of written submission within 14 days therefrom and on completion of written submission judgment as to the Independent Children’s Lawyer’s costs is reserved to chambers.
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 & Radev 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 PARRAMATTA |
FILE NUMBER: PAC 843 of 2015
| Mr Olmos |
Applicant
And
| Ms Radev |
Respondent
REASONS FOR JUDGMENT
On 26 February 2015 the applicant father commenced proceedings in the Federal Circuit Court of Australia seeking parenting orders in relation to the child X born … 2010.
At the commencement of the proceedings the child was only four years of age.
The proceedings remained in the Federal Circuit Court of Australia for three and a half years before a judge of that court transferred the proceedings to this Court after the proceedings became significantly complex in the context of issues between the parties in relation to final property settlement.
Ultimately, at the time of final hearing in this Court, the child was nine years of age.
Initially the mother sought to relocate with the child to the Gold Coast in Queensland. At the commencement of the trial, it was the mother’s proposal that she be able to relocate the child’s primary residence with her to Sydney from the Town A area in the E Region of New South Wales. She proposed that the child spend time both during school term and school holidays with the father in the Town A area where he resides on a rural property about 20 minutes’ drive (22 kilometres) from where he is engaged as a grazier.
The father’s proposal is that the child should reside primarily with him on the rural property where he has lived and worked since 1995, continue to attend her schooling in Town A and spend time with the mother during weekends in the school term and school holidays. The rural property is a joint enterprise worked by the father, his brother Mr F and his parents Mr G and Ms H who live on nearby properties.
It was agreed that relevant travel times were as depicted in Exh “P”. From the J Area in Sydney to Town C being about one hour, 30 minutes and then from Town C to Town A being about another one hour, 20 minutes subject of course to traffic variables; overall about three hours.
Context
At trial the mother was aged 43 and the father aged 44.
The parties’ relationship commenced in late 2005 and they commenced living together after their marriage on … 2008.
The child X is the only child of the parties’ relationship.
The parties separated in late November 2014 when the child was just four years of age.
At separation the mother and child moved from the father’s rural property outside Town A to a cottage that she purchased in Town B just outside of Town A. She and the child have remained living there since separation to date of trial.
The parties divorced in 2017.
The father remarried in … 2018 and he and his new wife Ms Olmos have a child Y born in … 2019. Both parties agree that the child enjoys warm and engaged relationships with Ms Olmos and her new half-sister with Ms Olmos attending to many of the child’s needs when spending time in the father’s household.
The proceedings
Shortly after separation and in late February 2015 the father commenced proceedings seeking orders only as to parenting in relation to the child X. His Initiating Application, in summary, sought orders that he and the mother have equal shared parental responsibility for the child, that the child live primarily with him and that the child spend weekends and school holiday periods with the mother together with other special days.
The mother in her Response filed in the Federal Circuit Court of Australia on 17 April 2015 sought orders that provided for she and the father to have equal shared parental responsibility, that the child live primarily with her and that the child spend weekends and school holiday periods with the father together with other special occasions.
Whilst both parties sought interim orders from the Court to formalise interim parenting arrangements for the child pending final hearing, without interim orders being made it was ordered on 24 August 2015 that a Family Report be obtained and proceedings were thereupon adjourned for further judicial mention to 20 May 2016.
In February 2016 the mother filed an Amended Response that sought orders that she be permitted to relocate the primary residence of the child to the Sydney Metropolitan area.
The matter was ultimately listed for interim hearing on 25 May 2016 following release of the Family Report in April 2016. Consent orders as to equal shared parental responsibility, school holidays and special days were made on that day. Further interim parenting orders were ultimately made at hearing on 7 June 2016 that, in summary, provided:
a)That the child live with the mother;
b)That the child spend time with the father in each alternate week from after school Thursday to before school Monday and in the other week from after school Wednesday to 7.30 pm; and
c)Both parents were at liberty to attend any school, sporting or extracurricular event for the child.
Subsequently, the issue of property adjustment occupied the parties for some time with various interlocutory orders being made as to valuations and the obtaining of Single Expert reports.
In March 2018 proceedings were adjourned by consent for about six months to facilitate the parties attending mediation as to all issues.
Subsequently, on 22 August 2018 proceedings were transferred to this Court for directions on 11 September 2018.
In circumstances where it was readily apparent that the parties were in significant conflict in relation to parenting orders and that they had little ability to communicate appropriately in relation to the child, an order was made on 17 October 2018 appointing Dr D as a single expert pursuant to Part 15.5 of the Family Law Rules 2004 to prepare a report upon matters relating to the welfare of the child. Appointments with the Single Expert were expected to occur in February 2019.
On the same day an order was made for the appointment of an Independent Children’s Lawyer to represent the interests of the child.
On 23 July 2019 following receipt of the Single Expert Report, that report was released to the parties and the parties were ordered to attend the Court Ordered Mediation program in an endeavour to resolve the significant parenting issues between them. The mediation was unsuccessful.
On 10 October 2019 trial directions were made to facilitate the matter being listed for final hearing as to both parenting and property issues allocating five days for trial commencing 28 January 2020.
On the first day of the final hearing the parties resolved issues as to property settlement and orders were made by consent.
The trial then proceeded as to final parenting only.
At the final hearing an issue arose as to the mother’s new employment arrangements in Sydney that required her to be absent from her primary residence to undertake shift work. On 3 February 2020 the following order was made:
Pending further order, in the event that the mother or by arrangement with the mother the maternal grandmother are not available to care for the child in Town A when the mother is obliged to work, the mother shall provide to the father reasonable notice of that circumstance and the child shall be cared for by the father until the mother returns to Town A from her employment and for the purposes of this order, the mother shall provide a copy of her monthly roster to the father by email as soon as practicable after that roster becomes available to her.
At trial
At trial the applicant father relied upon the following documents:
a)His further Amended Initiating Application filed 30 October 2019;
b)His Financial Statement filed 6 December 2019;
c)His primary trial affidavit filed 6 December 2019;
d)The affidavit of his new wife Ms Olmos filed 6 December 2019;
e)The affidavit of Ms H, paternal grandmother filed 6 December 2019; and
f)The affidavit of Mr G, paternal grandfather filed 6 December 2019.
At trial the respondent mother relied upon the following documents:
a)Her Further Amended Response filed 30 October 2019;
b)Her Financial Statement filed 6 December 2019;
c)Her primary trial affidavit filed 6 December 2019;
d)The affidavit of Ms K, maternal grandmother filed in court;
e)The affidavit of Mr N, maternal step grandfather, filed 6 December 2019; and
f)The affidavit of Ms L, the mother’s treating psychologist filed 6 December 2019.
Orders sought by the parties
The parties’ respective proposals are evidenced by the orders sought by each of them at trial.
The orders sought by the father at trial are set out in his Minute of Proposed Orders (Exh “Y”). In summary, the father’s proposals relevantly provided:
a)That the parents have equal shared parental responsibility for the child.
b)That in the event that the mother remains residing in Town A, Town M or Town O:
i)The child live with the mother; and
ii)That the child spend time with the father during school terms in alternate weeks in one week from the conclusion of school Thursday to before school Monday and the other week from after school Wednesday to before school Thursday and for one half of all school holidays and on other special occasions.
c)In the event that the mother relocates to Sydney:
i)That the child live with the father;
ii)That the child spend time with the mother as agreed but failing agreement on alternate weekends during school term from after school Friday until 7.00 pm Sunday or in the event of a long weekend until 7.00 pm Monday;
iii)That the mother be responsible for collecting the child from school on Friday or from the father’s rural residence at 3.30 pm or upon the mother notifying the father changeovers to take place at Town C at 6.00 pm and that at the conclusion of the child’s time with the mother changeovers be at Town C at 5.00 pm or should the mother elect at the father’s rural residence at 7.00 pm;
iv)That should the mother travel to Town A she be permitted to spend time with the child from after school Friday until before school Monday on three occasions each school term provided that she provide to the father at least 14 days’ notice in writing;
v)That the child spend time with the mother during New South Wales school holidays for two thirds of each school holiday period with changeovers to take place at Town C; and
vi)that the child spend time with the mother on the mother’s day weekend, defined time should Easter not coincide with school holiday periods.
d)Otherwise, the father sought specific issues orders as to electronic communication between the child and each parent, attendance by the parents and family members at school and extracurricular events, the obtaining of information from the child’s doctors, hospitals, schools and sporting associations, notification as to the child’s medical appointments, notification as to any major health issues relating to the child, mutual non-denigration orders, information as to current landline or mobile telephone numbers, notification as to any change in primary residence, overseas travel for the child on proper notice and notification as to any interstate travel.
e)That the parties do all things necessary to follow all reasonable recommendations and attend all appointments for ongoing family therapy for the child.
The final orders sought by the mother at trial (Exh “V”) provided, in summary, as follows:
a)That the parties have equal shared parental responsibility for the child.
b)That the child live with the mother.
c)That the child be permitted to relocate with the mother to the J Area of Sydney and attend a school as agreed between the parties or failing agreement a public school in the catchment.
d)That the child spend time with the father as agreed but failing agreement as follows:
i)During New South Wales school term each alternate weekend from after school or 3.30 pm if not a school day until 7.00 pm Sunday;
ii)That the father be responsible for collecting the child from school or the mother’s residence at 3.30 pm if not a school day provided that if the father elects in writing such changeover take place at Town C at 6.00 pm;
iii)That at the conclusion of the child’s time with the father changeovers be effected at Town C on Sunday at 5.00 pm or should the father elect at the mother’s residence at 7.00 pm;
iv)That the father use his best endeavours to facilitate the child’s attendance at her extracurricular activities;
v)That should the father choose to be in Sydney he shall be permitted to spend time with the child from after school Friday until before school Monday on three occasions each school term subject to the father providing 14 days’ written notice to the mother;
vi)That during school holidays the child spend time with the father for the entirety of the school holiday period at the conclusion of Term One with the father to collect the child from school and return the child to the mother at Town C, for one half of the school holiday period at the conclusion of Term Two, in 2020 and each alternate year thereafter the entire school holiday period at the conclusion of Term Three with the father to collect the child from school and return the child to the mother at Town C;
vii)For one half of the school holiday period at the conclusion of Term Four being the first half in each even-numbered year and the second half in each odd-numbered year with changeovers to be effected at Town C;
viii)Electronic communication between the child and the non-resident parent at 6.00 pm every Wednesday and at such other times as the child may reasonably request;
ix)For defined times on special occasions including the child’s birthday, parents’ birthdays, the Easter festive period and Mother’s Day and Father’s Day and for the purposes of overseas travel on appropriate notice;
x)Specific issues orders in relation to each parent obtaining information relating to the child from doctors, hospitals, schools and sporting associations, notification by both parents as to any medical or hospital attendance by the child, notification by both parents to the other of any medical, therapeutic, school or any other appointment concerning the child, notification by both parents as to any health issue concerning the child while she is in their respective care, mutual non-denigration order, updating information as to current landline and mobile telephone number and notification as to any interstate travel.
The Independent Children’s Lawyers’ Proposed Orders
The Independent Children’s Lawyer (“ICL”) provided to the Court a Minute of Proposed Orders on behalf of the child at the conclusion of evidence (Exh “X”). In summary, the ICL proposed:
a)That the parties have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father as agreed between the parties but failing agreement as follows:
i)During school term no less than five nights each fortnight commencing at the conclusion of school each alternate Wednesday and concluding at the commencement of school on Monday or 4.00 pm if the Monday is a public holiday and each Thursday when the child is not spending time with the father commencing from after school until 7.30 pm;
ii)For one half of all school holiday periods; and
iii)That for the purposes of changeovers during school term the father or his agent to collect the child from school at the commencement of time and return the child to school at the conclusion of such time otherwise changeovers be effected at the mother’s place of residence at the commencement of such time and that the father’s place of residence at the conclusion of such time.
In the event that the mother elected to relocate from the Town A area without the child, the ICL sought the following orders as to the child’s living arrangements:
a)That the child live with the father; and
b)That the child spend time with the mother as agreed or failing agreement as follows:
i)Each alternate weekend from 5.30 pm Friday to 5.30 pm Sunday;
ii)The entirety of the school holiday period at the conclusion of Term One;
iii)For one half of the school holiday period at the conclusion of Terms Two, Three and Four.
iv)That changeovers be effected at a location car park, Town C.
In the event that the mother is permitted by the Court to relocate the child’s residence to Sydney, the ICL proposed orders as to the child’s living arrangements as follows:
a)That the child live with the mother.
b)That the child spend time with the father as agreed or failing agreement as follows:
i)Each alternate weekend from 5.30 pm Friday to 5.30 pm Sunday;
ii)The entirety of the school holiday period following the conclusion of Term One and for one half of the school holiday periods following the conclusion of Terms Two, Three and Four;
iii)That changeovers be effected at a location car park, Town C; and
iv)Provided always that the child spend time with the father on the Father’s Day weekend and with the mother on the Mother’s Day weekend.
c)Otherwise, specific issues orders as to electronic communication between the child and the non-resident parent at 6.00 pm each Tuesday and Thursday, overseas travel on proper notification, liberty for the parents to attend at any school or extracurricular activity that parents would usually attend, that the mother provide a copy of her ongoing work roster to the father within 24 hours of receiving same, that if either parent is unable to personally care for the child overnight that that parent notify the other parent who will be afforded the first option of caring for the child, that each parent have authority to obtain appropriate information as to the child including but not limited to doctors, hospitals, schools and sporting associations, notification to the other parent should the child be required to attend upon a doctor or hospital for any reason, notification of any appointments relating to medical, therapist or school not less than 24 hours before such appointment, notification to the other of any health issue concerning the child, mutual non-denigration, updating information as to landline and/or mobile telephone numbers and addresses, and notification as to any interstate travel providing particulars of travel arrangements including accommodation.
d)That the mother as soon as practicable provide to the ICL a certificate as to completion of a post separation parenting course, that the parents immediately do all things necessary to engage with a family therapist to address issues including communication between parents and child, that the parents do all things necessary to obtain a referral for the child to attend a child psychologist with the child to continue to attend such therapeutic intervention as deemed necessary by the child’s treating practitioner and that the parents authorise the ICL to engage with any therapist or psychologist appointed pursuant to orders.
e)That the appointment of the ICL continue for a period of 12 months after final orders with the ICL having liberty to relist the matter on 14 days’ notice.
It is noted by the Court that it is remarkable in the context of the parties’ relationship as discussed below that each of them and the ICL seek to impose proscriptive obligations on the parties that, in effect, descended into the minutiae that perhaps can only in the future lead to ongoing dispute and conflict.
Parenting: Relocation
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Whilst that is the paramount consideration, it is not the only consideration. In AMS v AIF (1999) 199 CLR 160, his Honour Justice Kirby said:
[144]… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. … (footnote omitted)
This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases, such that there may be a perception that they are a unique type of case to be determined differently from others.
The jurisprudence (see B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755, Morgan & Miles (2008) 38 Fam LR 275; (2007) FLC 93-343) is clear in that such cases remain to be determined, like all parenting matters, by considering the best interests of the child in the context of the legislative framework.
In Taylor & Barker (2007) 37 Fam LR 461, their Honours Bryant CJ and Finn J said:
[53]… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
Their Honours went on to say:
83.However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
In Malcolm & Monroe and Anor (2011) FLC 93-460, where the Full Court said:
83.We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
Recently in Asher & Wilkinson [2020] FamCAFC 44 the Full Court said:
39.We pause here to observe that the task before the primary judge was to determine what parenting orders were in the child’s best interests. It was not to determine the location in which the mother was “permitted” to live. The use of that phrase in the context that it was used tends to focus on the mother having to justify to the Court where she wishes to live and obtain its approval. The use of that phrase obscures, if not overrides, the mother’s undoubted right to live where she chooses as explained in AMS v AIF (1999) 199 CLR 160 at [92] and [191] and U v U (2002) 211 CLR 238 (“U v U”) at [37], [137] and [176].
…
In D & SV (2003) FLC 93-137 the Full Court (Nicholson CJ, Kay and Monteith JJ) 54 said (at p 78,280):
16.It should be noted that her Honour did not give consideration at all to any alternative contact arrangements that could be made if the children moved to Drysdale. As early as 1976 in Craven v Craven (1976) FLC 90-049… in setting aside an order that restrained a mother from moving her children from Geelong to Queensland, the Full Court said at FLC 75,205…
“Our concern in this case is that his Honour did not give adequate consideration to alternative forms of access which could have been arranged. In our view an order restricting the freedom of movement of the custodial parent should be made only if the welfare of the children clearly indicates that the other parent should have regular weekly access rather than less frequent but longer periods of access. In our view as children grow older there can be advantages in the latter form of access. In this case the children have been in regular contact with their father and we agree that it is desirable in the interests of the children that they maintain their relationship with their father. However, when alternatives are considered, there is no preponderance in favour of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access; e.g. 3 or 4 visits each year of one or two weeks duration.”
17.Then, in AMS v AIF (1999) 199 CLR 160… Kirby J, when speaking of relocation within Australia, said:
192.…the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…”
Parenting: Best interests of the child
The relevant principles in relation to parenting are well settled: see Goode & Goode (2006) FLC 93-286. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Such a relationship need not be optimal: McCall & Clark supra at [116].
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
iii)With whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)Any other fact or circumstance that the court thinks is relevant.
Factual background
At the commencement of the parties’ relationship in 2005 the mother was working as a healthcare professional in Sydney. The father is the fourth-generation of a farming family in the Town A district and had lived and worked on the family farm for almost the whole of his life.
In early 2007 the mother moved to Town A to spend more time with her grandmother who was unwell and to pursue her relationship with the father. The mother commenced working as a healthcare professional at Town O Hospital.
In January 2008 the wife commenced working at Town A as a healthcare professional.
After marriage the parties commenced to reside on the father’s family rural property outside of Town A. It is common ground that this property is about 21 kilometres from the Town A CBD.
After moving to the property there was conflict between the mother and father as to other members of the father’s family who stayed from time to time in the parties’ cottage on the property.
The mother continued her employment in Town A and continued to provide care for her grandmother.
In January 2010 the mother enrolled in a part time tertiary course undertaking a Healthcare qualification. The mother’s studies were deferred until February 2011 due to her grandmother’s health. Her grandmother passed away in June 2010.
The mother ceased work some time before the child’s birth and as the birth of the parties’ child approached the mother was receiving antenatal care in Sydney at the P Hospital. Prior to the birth of the child the mother resided with her mother and her partner Mr N for about five weeks. Complications arose and the child was delivered by emergency caesarean following which the mother suffered a catastrophic bleeding. The mother and child remained in hospital for about seven days before she returned to reside on the rural property. The maternal grandmother stayed for a week to assist.
Following the child’s birth the mother was the primary carer for the child but was assisted by the father subject to his obligations in relation to the ongoing running of the property.
In February 2011 the mother recommenced her studies online. She obtained her Graduate Certificate in Healthcare and subsequently completed her Master’s degree in December 2013.
In late June 2011 the mother returned to work as a healthcare professional at Q Organisation, Town A working one or two shifts a month. The shifts gradually increased to two shifts a fortnight. The mother’s income supplemented the father’s farm income.
The mother and father proposed that the child would commence to attend day care on her return to work but a place could not be secured for her and they were assisted by the paternal grandmother and a hired carer for a period. The child commenced formal day care in February 2012 where she continued to attend until December 2014.
The father and mother managed their respective work and study commitments so as to provide day-to-day care for the young child. They were assisted from time to time by the paternal grandparents and the father’s sister.
The mother complains that after the birth of the child she felt somewhat estranged from the paternal family and that their actions were undermining her role as a mother.
By April 2013 the mother asserts that she and the father were no longer living as a married couple with their relationship deteriorating and there being often verbal arguments, in particular, in relation to what the mother regarded as the father’s brother’s intrusion into their day-to-day life.
In April 2013 the mother secured a permanent part-time job working five shifts per fortnight as a healthcare professional. The mother made arrangements for the child to commence in child care. From her income the mother continued to pay private health care family cover, the child day care expenses and general household expenses including for her car and phone.
The parties’ relationship continued to deteriorate and in mid-2014 they briefly engaged in marriage counselling. The father thereafter engaged in his own counselling with a Mr R who informed the mother that he was seeing the father not for marriage counselling but for anxiety and depression. In June 2014 they commenced to occupy separate rooms.
The mother had resolved to separate from the father and made arrangements to purchase a cottage property at Town B about five kilometres from Town A. The mother funded the purchase price of $389,000 with a mortgage of $350,000 and the balance of purchase price from funds provided by the husband. The mother paid costs associated with the purchase including stamp duty from her own funds. The mother moved to her new home on 22 November 2014.
The mother returned to the rural property a short time later to collect personal belongings and other items. The father obstructed a doorway and pushed her on the shoulder.
At this time the parties agreed that the child would reside with the mother and spend extended weekend time on the father’s property with him about three weekends a month.
After separation the parties were unable to reach any formal arrangement in relation to the child. The father asserted that there should be an equal time arrangement notwithstanding the mother’s assertion that he worked on the property from 7.00 am to 6.00 pm most days.
The child commenced pre-prep at her present school, T School Town A, in January 2015, aged four. The child is doing well at school and enjoys participation in a number of extracurricular activities that the mother has engaged her in. The child has friendships through school and, otherwise, is able to engage with them mostly when she is with the mother.
Both parties agree that the child enjoys and participates in farm life when she is with the father.
The mother at this time obtained a position located at the Town A Hospital. Her working conditions were flexible and allowed her to work from home on occasions if required for the child’s care.
On one occasion in December 2015 the father said to the mother “Just fuck off to Sydney and leave X and me alone”. A few days later the father attended at the mother’s workplace without notice gaining access to the offices by way of the fire stairs. The mother’s work manager asked the father to leave and to respect the mother’s workplace. The work manager complained to the mother that the father was aggressive.
In February 2016 the mother sought an order that she be able to relocate the child’s residence to Sydney. At that time there were prospective employers in Sydney that could offer her employment commensurate with her qualifications and experience and at a higher salary that she was then able to earn.
The mother was finding living in the Town A area difficult by reason of ongoing conflict and issues between herself and the father and the extended paternal family. The mother complains that she feels ostracised and isolated in Town A by reason of the father coming from a prominent family in the district. She perceives that she has been the subject of scorn and gossip in the town. The child’s cousins aged 19, 16 and 11 do not speak to the mother when she sees them at school and the father’s family will not speak to her at school events.
The mother says that she feels alone, isolated and outnumbered. On occasions the father and his extended family turn up at places where she is and just stand and stare at her. Teachers and parents at the child’s school appear to the mother to be uncomfortable in her presence. The mother says that she remains in a constant state of anxiety of further harassment from the father and his family, feeling that they have isolated her from the child’s school community and the wider town community.
Yet the father gives self-serving evidence as to the parties being able to “keep an open dialogue” and to “overcome personal differences” with such assertions at odds with the mother’s evidence, his own evidence and objective evidence referred to below. He asserts a belief that the mother “goes through a cycle every seven (7) years to try and pursue new and improved lifestyle”. He seems unable to reflect on his own part in the disintegration of his relationship with the mother.
The mother has sought professional assistance from a psychologist in an endeavour to cope with the circumstances in which she finds herself arising from the conflicted relationship with the father and the paternal family.
The parties remained in petty conflict over parenting arrangements until such time as interim orders were made in May and June 2016 as referred to above.
However, following interim orders, the parties continued their conflictual relationship in relation to the child’s time with each of them and appropriate care arrangements. The police have been involved on not less than three occasions (Exh “S”) with no action taken.
In March 2018 the child became unwell in the father’s care. The child was returned to the mother’s care and the following day the child was admitted to the local hospital with a tonsil infection. The father was in attendance at the hospital till about 8.00 pm then left. The child’s later health circumstances were such that she was evacuated by air ambulance to Sydney arriving in the early hours of the morning. The mother had earlier informed the father by text message that they were going to Sydney. Later, the child and the mother were asleep in the ward at DD Hospital and the mother awoke to see the father standing over her. The mother said “she’s sleeping, best not to disturb her”. The father raised his voice and said “Fuck off Ms Radev, just fuck off… I’m not leaving”. The mother felt intimidated by him and was uncomfortable in his presence. Hospital notes report the mother crying in bed with the child and “highly distressed”.
The father remained for about 10 minutes and then left. In oral evidence the father accepted that the incident was a poor decision on his part.
The hospital social worker was contacted about the incident and the next morning interviewed the mother who provided a history of the difficult relationship with the father and her concerns as to the child in his care (Exh “R”). The social worker spoke to the father. Later that day the mother was also interviewed by the police and she was referred to domestic violence services. The Police spoke to the father who had returned to the hospital.
Upon returning to Town A the petty conflict continued. The child has reported to the mother that “Nanny says bad things about you” and “she says that you are dreadful”.
The father acknowledges that they were both “short” with each other with poor communication starting fights.
The ongoing conflict and poor parental relationship gave rise to the child commencing counselling in mid-2018.
The Single Expert Dr D in her report (Exh “G”) appropriately summarises the parties’ conflict that occupied much of the primary affidavit material and oral evidence thus:
178.The conflict between the parties which seems to have existed pre-separation and has continued thereafter shows no signs of abating. Although there are no A.V.O. proceedings, the police have been contacted and Ms Radev in particular feels some disappointment that the police have not acknowledged the level of intimidation and harassment to which she has been exposed. The parties accuse each other of being unable to move on and their demeanour suggests that they are maintaining their rage. Their unresolved property dispute is undoubtedly complicating the parenting issue. Both project blame onto the other for having behaved aggressively and obtrusively and invading their personal spaces. Ms Radev has also made some disclosures to her therapists that she fears for her safety. Each of them takes the position of the victim and is defensive that they have behaved inappropriately. It will be for the Court to determine the veracity of the allegations that have been made, however, if they are correct, it does seem that both parties have, at times, behaved in immature, disrespectful ways. Although they say X has largely been shielded from their conflict, the potential for tension between them is ever present and lies close to the surface. The risk that is posed to either party or to X needs to be a significant factor for the Court to consider in determining whether Ms Radev is permitted to relocate. Based on this assessment, it would seem that any risk, if it indeed exists is more covert rather than overt and not high grade.
179.It is important for the parties to appreciate that children exposed to on-going family conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are commonly seen in such children. They also sometimes manifest disorganization of planning and organizing functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike A.D.H.D. X is likely to experience significant stress if she continues to be exposed to conflict and environmental stressors and potentially this could impact on her mental health. A child’s vulnerability to mental health concerns is determined by their biological vulnerability and the exposure to stressors. Already both parents have some predisposition to anxiety and depression which would have an impact on X’s biological template.
There appears little prospect of the parties’ poor relationship ameliorating. It presents to the child as a real and significant risk.
During 2018 the father had repartnered with a child of his new relationship being born in … 2019.
At present, the child is enrolled in extracurricular activities including gymnastics, dancing, music and after school sport. The mother takes the child to these activities when the child is in her care. The mother has, otherwise, ensured that the child has had experiences such as trips to the Gold Coast in Queensland, beaches on the New South Wales south coast, a trip to Disneyland accompanied by the maternal grandmother, a cruise to the South Pacific, a trip to North Queensland and activities in Sydney including the beaches, Taronga Zoo, Luna Park, the aquarium, the wax museum and various shows.
The mother describes the child as a confident and friendly child who makes friends easily. She expresses a hope that the father would continue to maintain the child’s friendships in the Town A area should the child be permitted to live with her in Sydney.
The mother has engaged the child in counselling during 2018 on recommendation from the JJ Domestic Violence Service.
The child has expressed a wish to the mother, to her counsellor and to the Single Expert Report Writer that she would like to spend more one-on-one time with her father complaining that “he is too busy on the farm” and that she “stays with nanny, Ms Olmos or Ms S”.
The child is guarded in speaking to the paternal family about her life in the mother’s household perhaps reflecting the child’s exposure to the conflictual relationships that exist.
The mother’s employment circumstances and her proposals
The mother complains that her previous work circumstances were traumatising in that she was required to investigate unexpected and often preventable deaths of patients while in hospital or soon after discharge. She was required to investigate issues surrounding inpatient suicides, maternal and neonatal deaths and deaths as a result of system failures. She found that she was physically and emotionally exhausted on a daily basis.
The mother has not worked as a healthcare professional for 13 years and has not retained her skills to seek work in that area.
The mother had applied for various other positions, in particular, involving managerial responsibilities. She was for a period in 2017 seconded to a role as patient engagement manager that provided flexible work arrangements and a higher salary. Her application for the permanent role in this position was unsuccessful and she was required to return to her substantive role.
In October 2019 she was informed that her then role was displaced and that she may be offered an alternate role in remoter towns such as Town EE or Town HH some five and a half hours and three and a half hours drive from Town A respectively.
The mother’s last work arrangement in Town A was in November 2019 on a casual basis. She was able to do a casual shift on 26 January 2020. She has unsuccessfully applied for six to seven jobs in the Town M/Town A area.
The mother, to enhance her income prospects, applied for and obtained a permanent part time position as a healthcare professional at U Hospital in Sydney. She is required to work a minimum of 20 hours a week. On obtaining the position that commenced on 6 January 2020 she planned to undertake shifts when the child was, otherwise, in the father’s care. At trial she was working two consecutive 12 hour night shifts a week with her roster available four weeks in advance. Up to trial, the child had been with the father in the school holiday period when the mother was required to work or the maternal grandmother has assisted.
The mother’s shift work will allow her to be available to the child most days and to be engaged in the child’s schooling during the day such as reading groups etc.
On the commencement of school the mother is able to vary her shifts somewhat to suit. Clearly, if the child was to remain in Town A with her, she will require the assistance of the father or her mother to continue her present employment.
It is her hope that she will be able to increase her hours of work and obtain daytime shifts if she is able to relocate with the child to Sydney. At present her income is about $90,000 per annum. She has continued to meet mortgage payments and all outgoings in relation to her Town B property but has been assisted financially with loans from her mother and her stepfather.
The maternal grandmother, who is shortly to retire, resides in the nearby area and is available to assist with the care of the child in the event that the mother is required to work night shifts. The maternal grandmother’s home is available to the mother and child in the short term until the mother rents or purchases her own accommodation.
Whilst the mother had initially proposed a relocation of the child’s residence to the Gold Coast area of Queensland, such a proposal has been abandoned and she seeks to relocate the child’s residence to the J Area of Sydney, close to her new employment and to support from her maternal family. The maternal grandmother is able to provide assistance to the mother with overnight care of the child should the mother be required to work a night shift in her new employment. The maternal grandmother and her husband (who is semi-retired) reside about 10 minutes away from the area that the mother proposes to live in and she proposes to retire from employment shortly. The mother describes a close relationship between the child and the maternal grandmother who has accompanied them on holidays occasionally.
The mother has other extended family in Sydney including a step sister with three children living in the Suburb V area, a step sister with two girls aged 10 and 12 living near Suburb W, a step sister with two girls aged four and nine living in Suburb Z and her step brother.
The mother initially proposes to obtain a rental cottage or home unit accommodation for herself and the child until such time as she may be able to purchase accommodation for herself and the child in Sydney. It is noted that property settlement orders provide that she will retain her property at Town B and she has been paid the additional sum of $450,000 by the father as provided for in property orders made 28 January 2020 from which she will be required to pay money advanced to her by family.
The mother describes the child is confident, intelligent and astute. She says that the child adapts well to change and has adapted well to living in two houses. The mother sensitively expresses her view that it will take some time for both her and the child to adjust in living in a different environment, however, the child makes friends easily, has a good academic record and is familiar with the proposed Sydney surroundings.
In her present school, the child is performing at a level well above her peers. The child excels in maths. The mother assists the child regularly with her homework and the mother says she has full confidence that the child will adapt to a new school.
The mother has made enquires as to appropriate public schools. The mother proposes that the child will attend a school agreed to by herself and the father in the J district area of Sydney and in default of there being agreement, the child will be enrolled in a public school in the child’s catchment area with BB Public School being the mother’s preference. Otherwise, the mother has enquired appropriately as to available extracurricular activities for the child.
The mother asserts a commitment to ensuring that the child enjoys a continuing relationship with the father, Ms Olmos his new wife and Y her new half-sister. She acknowledges that it is important that the child continue to spend time on the farm so that she can continue to experience the country life like her father. The mother acknowledges that the child has a good relationship with the father’s new wife and is supportive of the child’s ongoing relationship with her half-sister.
The mother expresses concern that the father is not readily available to the child when the child spends time with him. This concern is reflected in the child’s report to the Single Expert and her complaints to the mother.
The mother has observed the child travels well in the car, having travelled often from Town A to Sydney. The child is engaged in the car either chatting, listening to music or watching movies on a device. The child travels sometimes with her father to Canberra and surrounding towns. The mother will facilitate electronic communication between the child and father as required.
In cross examination the mother describes her life in Town A as “miserable” and as being “ostracised by the community and the school where she was subject to unbearable gossip”. As to a proposal that she live in Town M she responded that it was too far from her family support, in the same area health service where she has not been able to obtain other employment and not feasible for the child’s continuing attendance at her present school. When pressed as to the child staying in Town A without her, the mother became visibly distressed. She could not imagine living without the child.
The Single Expert opines at [156]:
…..There is often a strong correlation between the contentment of a primary care giving parent and that of children and, if the needs of the primary care giving parent are not met, this will impact adversely on their children. The peace of mind which Ms Radev is likely to experience should she be permitted to relocate, would most likely flow on to her being more relaxed and less uptight as a parent providing X moves with her.
The mother’s psychological health
The mother’s treating clinical psychologist, Ms L, provided evidence as to her ongoing engagement with the mother. Relevantly, Ms L reports that the mother’s general practitioner provided a referral on 14 March 2018 with the referral noting a diagnosis of adjustment disorder with anxious mood following the child’s critical illness requiring transfer to the DD Hospital in Sydney as referred to above. The general practitioner’s referral noted that the mother’s symptoms were worsening due to the stress of harassment and verbal abuse from the father that had occurred publicly in the most recent episode.
Ms L’s initial report dated 12 July 2018 provides significant background as reported by the mother. The mother reported “increasing difficulty interacting with [the father] and his family, experiencing harassment from the family at school occasions and, feeling that [the father] was undermining her at the [child’s school]…”. The mother further reported concerns that the child was being neglected whilst in the father’s care.
Ms L considered that the mother’s presentation at that time may be better described as adjustment disorder with mixed anxiety and depressed mood. Ms L reports that “Ms Radev took two months off work to look after her daughter whilst she was convalescing. After the incident at the hospital in Suburb FF occurred, necessitating hospital staff to call the police, Ms Radev has been hyper vigilant about seeing [the father] or his family members in Town A. She sees that [the father’s] behaviour is no longer being mitigated by being in public and she is fearful of him”.
Ms L provided a further report dated 29 November 2019. She had continued to see the mother through late 2018 and during 2019. Relevantly, the mother reported her concerns that the father was not optimising his time with the child whilst expressing her wish that the child knows and enjoys being with her father and that the child has a positive relationship with him. Ms L reported that the mother’s symptoms were still present but that she had complied with stress management strategies to manage her mood and anxiety.
As to the impact on the mother’s mental health should she remain in Town A, Ms L reports that the mother perceives that her quality of life in Town A has been compromised. The mother continued to feel ostracised by the father, his family and other family connections including feeling compromised at the school. The mother related instances where she has felt embarrassed, humiliated and intimidated because of the father’s behaviour. Ms L reports “there have been several occasions where she has felt ostracized by other members of the family both at school occasions and in the community. For this reason, it is in her best interests to move away from Town A and away from this powerful intimidating behaviour”. Ms L further reported that “should the current circumstances continue, there may be a need to include psychopharmacotherapy”.
In concluding this report Ms L opined:
I strongly believe that it is in her best interests to move from Town A where she would have access to better work opportunities and be relieved from what she perceived as intimidating and abusive behaviour which has the power to harm her psychologically. Although a move would affect the care arrangements for X with her father, any changes might actually lead to improved quality of interaction with him and his extended family, were there stability and harmony for X and her mother.
In oral evidence Ms L confirmed her view that the mother had an adjustment disorder arising from her situational anxieties identified as:
a)concern for her daughter;
b)the conflictual and difficult relationship with the father;
c)the difficult paternal family engagement; and
d)employment issues referred to above.
Ms L referred to the mother as having a “tsunami of different triggers”. The mother’s symptoms of adjustment disorder would be worsened by the mother having to travel from Town A to Sydney to do her shift work (if she were to remain in the E Region with the child).
The father’s proposals
The orders sought by the father are set out above.
Matters touching on his proposals have been referred to above.
The father will continue to live in a cottage on his parents’ property whilst he remains an employee of his parents’ company.
The child enjoys warm relationships with the paternal grandparents and extended paternal family. The child enjoys relationships with her cousins on weekends and school holidays and with some at school. Her school friends do not visit at the farm and the child sees them on “special occasions” when in town. The child has also developed relationships with some of her stepmother’s extended family who live at Town CC, NSW about two hours’ drive from Town A.
The father acknowledges that the child makes friends easily and could do so at a school in Sydney. He accepts that the mother would facilitate the child remaining in contact with her Town A friends should she live in Sydney.
The father asserts that relocation to Sydney would impact adversely on the child’s relationship with him, his wife and her half-sister. He complains that he would not be able to collect the child from school on Fridays and travel would limit his weekend time. Yet he accepts that the child has complained to her counsellor that she would like “more one on one time” with him when spending time in his household, perhaps indicative of her care being left to others.
He, in oral evidence, accepts that he would be assisted if necessary by his wife with travel if the child was residing in Sydney. He asserted that he would travel to Sydney to attend school events and to see her otherwise. He was agreeable, if necessary, to changeovers being at Town C. The car trip would be good one on one time for him with the child and he would travel each fortnight for time with her subject to any difficulties on the farm. He would prefer to be able to have time that coincides with long weekends: Anzac Day, Queens Birthday and October long weekend where possible.
He accepts that the child wishes to live with her mother. He would be disappointed should the child reside in Sydney but will try and shield the child from it. He accepts that he and the mother could agree on a school in Sydney (and he would give consideration to meeting private Christian School fees) and on most major issues.
Should the child live with him, he says that electronic communication is no issue as there is internet coverage at the property. If with him the child could travel to school by bus from the property, about a half hour trip, a bit longer on bad traffic days. His wife in her oral evidence was supportive of the father and is available to assist with the child although she has now returned to part time work in Town A. Their child is now in day care two days a week. Surprisingly, the father’s wife has not met with or communicated at all with the mother.
Perhaps reflective of the strained family relationships, the paternal grandfather in oral evidence could not recall the last time he had spoken to the mother and had not reached out to the mother at all. The paternal grandmother, in oral evidence, proffers that she would be able to assist with travel should the child live in Sydney. She was also unable to recall the last time she spoke to the mother but, if necessary, would do so in relation to the child. There must be some circumspection as to the paternal grandparents’ ability to be supportive of the child’s relationship with the mother should she live with the father.
The father accepts that it would be a significant change for the child living with him and the child would need psychological intervention as the child “would be highly emotional and suffering the effects of missing her mother”.
The Single Expert Report and the Single Expert’s Oral Evidence:
Dr D, psychologist, provided a report dated 14 July 2019 (Exh “G”) and gave oral evidence. Regrettably, the report was prepared at a time when the mother’s proposal was to relocate with the child to the Gold Coast.
The report is readily reflective of the conflictual relationship between the parties and their efforts to put themselves in a better light in the context of the conflict. Yet it is also clearly evidence as to the inability of the parents to be properly reflective of the needs, psychological and emotional, of their child.
The Single Expert was provided with the mother’s notes from Ms L. The Single Expert observed:
43.Ms L’s counselling records were perused. Ms Radev was administered a Mood Assessment Program Report in 2016 and 2018. The results of the two administrations indicate Ms Radev’s elevated depression scores in 2018 compared to 2016. The test results indicate a personality style high in social avoidance which suggests a shy and unassertive style, perfectionism which suggests setting high standards for self and others and self-criticism which suggests a high tendency to be tough on oneself. Ms L reported that she has used interventions including stress management techniques, mindfulness and Cognitive Behaviour Therapy to help Ms Radev deal with the emotional responses to the stress she was experiencing.
As to the father, the Single Expert reported:
44.Mr Olmos stated he has no current mental health concerns. He indicated that he sought some psychological help with Mr R at the time his marriage to Ms Radev broke down. It is noted in his Mental Health Care Plan dated 18th August 2014 that he was diagnosed with Reactive Depression following the separation and tension which arose because Ms Radev felt he was too close to his family. There was no previously recorded history of depression. The parties attended two appointments with Mr R, according to Ms Radev, for the purposes of the Olmos family respecting boundaries. Mr Olmos agreed that they attended some joint appointments. He stated that they discussed the details of their separation including he and Ms Radev purchasing a house in Town B which Mr R recommended they do jointly.
45.Perusal of Mr Olmos’ counselling notes with Mr R suggest that he was in grief following the breakdown of his marriage. It is noted that Mr Olmos felt torn between wanting to repair his relationship with Ms Radev but also maintain relationships with his family. Reference is made to tension between Ms Radev and Mr Olmos’ mother. Mr Olmos reported in the sessions that he experienced aggression from Ms Radev. Mr Olmos disclosed in the course of counselling that he believed Ms Radev had feelings for a doctor in Adelaide. Interventions used for Mr Olmos included assertiveness training, self-esteem building and stress management.
The Single Expert identified the issues during assessment as:
•Parental responsibility
•Living arrangements for X
•The impact of relocation of the mother with or without X
•The parties’ different views of the effect on X’s relationships should she live in Town A or the Gold Coast and if Ms Radev lives on the Gold Coast
•The poor communication between the parties and significant others and the level of conflict between them
•The weight that is given to the child’s views, given her age and maturity
It is noted that much of the father’s interview is reflective of his deprecatory view of the mother. Otherwise, the mother’s interview is reflective of her poor view of the father and the paternal family.
On interview with the father the Single Expert relevantly observed:
83.Mr Olmos stated that he appreciates the closeness of the relationship X shares with her mother and that she misses her mother at times. He said that X has, on occasions, called her mother and told her that she was unhappy in his care and wants to return to her care as a reaction to not liking the limits he set for her.
On interview with the mother the Single Export relevantly reported:
106.At one point in the interview, Ms Radev acknowledged that X has a strong relationship with her father who is a “fun dad”. However, she raised a number of concerns about observations she makes of their relationship. She stated that Mr Olmos over delegates to others, for example, to collect X from school or look after her. She also asserted that he is incapable of making his time with X meaningful and does not know what to do with her. She said that X’s interaction with him, therefore, can appear forced and awkward.
As to the child on interview the Single Export observed:
117.X (aged 8 years and 9 months) presented as a verbal and articulate child who was forthcoming in her disclosures. She stated that she thought the purpose of the interview was to discuss where she wanted to live.
…
127.X said that she does not believe her parents are good friends as she has heard them fighting. She said that her message to her parents would be to stop fighting and get back together.
128.X attended 12 sessions of play therapy at the GG Centre between 30th July 2018 and 26th November 2018. Both parents were involved in the process. Ms Radev has stated in her affidavit that the counsellor shared with her that X speaks much more about her uncle than she does her father although this was not necessarily borne out by the therapist’s notes. There is reference in the notes to X’s seeking more one on one time with her father. Her play themes also suggested her awareness that others would make decisions for her in the family law dispute.
The Single Expert provided recommendations (in the context of the then proposal of the mother to relocate to the Gold Coast) in the following terms:
190.It is recommended that the parties work on improving their communication so they can more effectively share parental responsibility. They may wish to seek the assistance of a therapist who specializes in family law in the Town M/Town A area.
191.If Ms Radev does not move to the Gold Coast, is recommended that the X continue to live with the mother and spend substantial time with her father. It is recommended that this be no less than five evenings per fortnight, preferably in a block period and one evening in the other week, if not overnight, for an evening meal.
192.If Ms Radev chooses to relocate to the Gold Coast, the Court will need to balance the losses for X of moving from the rich network of paternal extended family, the school she has attended for all of her life and the security of having lived on the Town A community against being with her mother who has been her primary caregiver to an unknown community where there is limited social support. Ms Radev and X hold a high level of idealism that this will be a positive move. While this is an untenable dilemma that cannot have any possible positive outcomes for X, the Court would need to give favourable consideration to Mr Olmos becoming the primary caregiver for X and for X to continue to live in Town A.
193.It is recommended that whatever the final decision for X’s living arrangements, special occasions and school holidays be shared between the parties. Should Ms Radev relocate, it is recommended that X spend time with the non-live with parent as often as is practicable during school term by the non-live with parent visiting her where she is living and for the greater portion of the school holidays at the residence of the non-live with parent.
194.It is recommended that there be no denigration of significant others or any discussions pertaining to the adult dispute with the children.
195.It is recommended that the parties both avail themselves of literature on parenting, the impact of relocation and that Ms Radev enroll in a post-separation parenting course.
196.It is recommended that Ms Radev continues to secure support from Ms L or another therapist especially if she is not permitted to relocate with X.
197.It is recommended that X be referred for therapeutic intervention once the decision for her living arrangements are resolved and especially if the current level of conflict between the parties continues.
198.It is recommended that Mr Olmos receive psychological support whatever the final outcome for X’s living arrangements. If X lives with him, he and Ms Olmos would benefit from therapeutic assistance to help them integrate X into their full-time care and help her adjust to the loss of her mother moving away. If X was to relocate with her mother, Mr Olmos would need help to deal with his own grief and loss.
The Single Expert became apprised of the mother’s change as to her proposal to relocate to Sydney only at the commencement of the trial.
When asked as to the risk of the child’s alignment or enmeshment further with the mother if a relocation to Sydney was allowed the Single Expert said:
Well, that is potentially one of the risks and I think one of the, you know, very important dynamics to be monitored in therapy, in, you know, in any therapeutic intervention, because the potential is there for that symbiotic interaction to become more ingrained at a time when X really needs to be de-individuating and becoming more autonomous in her relationships with peers and her relationships with others…
…
I guess the relocation to Sydney proposes a tad more time in terms of spend time with dad. But it still has the potential – I mean, if you look at the stress scale, relocating might seem to a parent that it’s an answer to the dream, but there are stresses involved in relocating. I’m not saying that there are not stresses involved in staying in the community that the mother is currently in, but – and, you know, stress has a way of kind of attracting people to their comfort zone, to not extending themselves. So that would be a concern that I would have, yes. That there would just be a higher emotional reliance on X and her mother, on each other.
Counsel for the father asked the Single Expert as to the influence of peer groups should the child be in Sydney as she gets older. The Single Expert offered:
Well, developmentally, teenagers like to be around teenagers. And that assumes – and that’s what you would want as part of autonomy, part of moving through the adolescent phase. And certainly, it’s probably never as easy for a teenager to commit to alternate weekends with a parent, because the attractions around them – in terms of peers, in terms of extracurricular activities, in terms of work – will start to impact on being able to move – I mean, it happens even without relocations, that teenagers…
In the event that the mother relocated without the child the Single Expert said:
Well, certainly, it would be a grief for the child and an enormous loss to not have her mother as her primary care giver. And I think I’ve mentioned that she would certainly need support through that and therapeutic support. There, hopefully, would be ways in which the parties could manage holidays or as much time as possible for the child to spend with the mother within the confines of the parties living at a distance. I think either way this is going to mean a loss reaction for the child and grief that comes with that.
As to the impact on the mother of relocating without the child the Single Expert said:
Well, I think a huge amount of the mother’s sense of self is tied to being a parent – to being X’s parent. You know, I would say that it would impact very significantly on her intrapsychic … Wellbeing. She would – the mother, I think, would need an enormous amount of support to – and therapeutic intervention – to deal with that grief.
As to the child’s time in such a circumstance with the mother the Single Expert said:
Well, certainly, I would be advocating more time than every third weekend. …
… But, in this case, you know, I would be saying that if there is going to be a relocation, there needs to be as regular as is practical time with the other parent.
The following exchange took place with the Court:
HIS HONOUR: But the father doesn’t resile from the fact that he – subject to his commitments on the farm – would be able to come down to Sydney on occasions to engage in the child’s life.
THE WITNESS: Well, that’s very helpful. That would be extremely important, I think. Also because, you know, it gives – it gives the child and her family in Town M, if she came to Sydney, some conversation material about her life here. Otherwise, her life in Sydney and her life in Town M are Town A. Town A? Sorry, Town A, sorry.
That’s all right. That’s all right. We’re there already if we’re making that mistake. But – yes, keep going. Yes? Are – you know – kind of worlds apart and how does she create a bridge for communicating about what’s happening for her in Sydney. If she’s making new friends, making new activities and – and her Town A family is on the periphery of that
Discussion
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It is well settled that the Court should endeavour to fashion orders that provide parental relationships for the child that are meaningful being important, significant and valuable to the child. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child. The nature of the enquiry was approved by the Full Court in McCall & Clark (supra).
Regrettably, significant emphasis in this matter has focused on the temporal aspects of a supposed “meaningful relationship” without regard as to what may be meaningful for the child X.
It is without doubt that the mother has been the child’s primary carer when considering the child’s life as a whole and more recently the parenting arrangements in place since the interim orders referred to above. A continuation of the mother’s role as the child’s primary carer, if that is in the child’s best interests, is an outcome that results in a continuing meaningful relationship between the mother and the child.
The father has had an engaged relationship with the child during the parties’ cohabitation and thereafter. For some time that relationship has been defined by court orders. The nature and extent of the father’s personal engagement has been the subject of criticism by the mother and, it appears, by the child herself. But it is important to the child moving forward to maintain the child’s relationship with the father, his family and the extended paternal family. As discussed above, such can be achieved in this matter by ensuring a meaningful, but not optimal, in the sense of time, relationship is in the child’s best interests.
The Single Expert discussed the risks to the child as identified by her:
145.Based on this assessment, the parties need to be mindful that X is at risk of psychological harm as she tries to juggle the competing demands of her two parents who are caught in a hostile and unrelenting dispute. There is a long history of X being at the centre of the parental conflict and a parenting relationship that has been competitive rather than co-operative. The consequences of this type of harm are often harder to quantify but nonetheless they potentially have a very damaging effect on X’s emotional and psychological development.
The ongoing conflict and competitive parental relationship can have potentially significant issue for the child long term. The history is clearly indicative of the parents being incapable of ameliorating their relationship issues. The mother’s emotional frailties are exposed by her need to deal with the father on a regular basis. The father presents as paternalistic as is evidenced by his trenchant criticism of the mother reflected in the Single Expert report and his primary trial affidavit. The mother reciprocates with her own criticisms of him. All of this exacerbated by the confines of a small country town and community.
Should the mother remain in the Town A area there is no issue that orders can be made that facilitate a meaningful relationship between the child and both parents. The underlying nature and quality of such relationships will, however, be overshadowed by the proximity of the parents and their persistent conflictual relationship that has remained unabated by time. It is readily apparent that the mother’s underlying anxiety is fuelled by the conflict and the circumstances she finds herself in the Town A area.
The resolution of risk issues is to take priority over the consideration of meaningful relationships.
Should the mother be permitted to relocate to the J Area of Sydney such would remove a significant stressor on her. The issue is what orders, although not optimal, can be made to ensure that the child has a meaningful relationship with her father and the extended paternal family. It appears from the evidence that mostly the child’s time with the father is centred on the rural property, the activities thereon and the extended family that the child variously interacts with.
There is limited evidence suggesting that the child’s time with the father has centred on the town itself or the child’s interest in town. Hence, probably the child’s complaint that the father does not spend enough one on one time with her as he is otherwise engaged on the property at various times that she is with him.
Orders can be fashioned around the proposals of both parties to ensure that the child’s relationship with the father is based on appropriate time in all of the circumstances. Such time can include school holidays, long weekends during school terms, weekend time during school terms and time that the father can at his election spend with the child in Sydney.
The additional considerations
The child’s wishes have been referred to above. There is no doubt that she is close to her mother and reticent in relation to her father when in the mother’s presence as referred to by the Single Expert on interview. Whilst the child’s wishes in this matter are not determinative, they must be given some weight as a consequence of what is the child’s primary attachment to the mother by reason of the mother’s primary care of her. More importantly and leaving aside the issue of relocation, the child wishes to remain in the primary care of her mother.
However, the mother’s close relationship with the child especially in terms of what has been referred to as “enmeshment” needs to be addressed. It no doubt arises by reason of the mother’s anxieties as to the child and otherwise.
As opined by the Single Expert, the child needs to be able to individuate from the mother. This needs to be addressed by appropriate therapy with a copy of the Single Expert report being made available to the mother and the child’s therapists. The ICL could monitor such engagement.
The child’s relationships with the parents and others have been the subject of much discussion above. It is imperative that orders provide for the meaningful maintenance of same. The mother, as discussed, needs to address her enmeshment issues as discussed above, in particular, bring an end to co-sleeping with the child now aged nine. The father needs to be more attuned to the child’s desire to have more time with him and not simply to be parked as one of his extended paternal household. He needs to individuate his own relationship with the child. The child will benefit from extended periods in the father’s care that will facilitate the development of her relationships in his family sphere. The father is conscious of the child’s primary attachment to the mother as opined by the Single Expert above “Mr Olmos stated that he appreciates the closeness of the relationship X shares with her mother and that she misses her mother at times. He said that X has, on occasions, called her mother and told her that she was unhappy in his care and wants to return to her care as a reaction to not liking the limits he set for her”.
The likely effect by a change in the child’s circumstances as proposed by the mother has been the subject of much conjecture and opinion. The mother’s proposal impacts on the child’s time with the father in a temporal sense but the child will still maintain a close and meaningful relationship with him if he puts in the effort to be available to her. A change in the child’s primary residence to that of the father is fraught with uncertainty for the child. The likely impact on her has been described by the Single Expert thus:
Well, certainly, it would be a grief for the child and an enormous loss to not have her mother as her primary care giver. And I think I’ve mentioned that she would certainly need support through that and therapeutic support. There, hopefully, would be ways in which the parties could manage holidays or as much time as possible for the child to spend with the mother within the confines of the parties living at a distance. I think either way this is going to mean a loss reaction for the child and grief that comes with that.
Should the child remain with the father in Town A, the impact on the mother was described by the Single Expert thus:
Well, I think a huge amount of the mother’s sense of self is tied to being a parent – to being X’s parent. You know, I would say that it would impact very significantly on her intrapsychic … Wellbeing. She would – the mother, I think, would need an enormous amount of support to – and therapeutic intervention – to deal with that grief.” Such an impact on the mother in all probability would mean that her parenting capacity may be diminished and she would be less available to the child. The mother’s psychologist opined in her report: “Although a move would affect the care arrangements for X with her father, any changes might actually lead to improved quality of interaction with him and his extended family, were there stability and harmony for X and her mother.
For the benefit of the child, who is primarily attached to the mother and wishes to live with her, any change in the child’s circumstances must in part address the need to maintain the child’s relationship with the mother and the mother’s optimum parenting capacity.
The parties agree by reason of the orders respectively sought by them that there are no significant practical difficulties in the mother’s proposed move to Sydney. Whilst there is longer travel, the parties agree to a changeover point should the child be permitted to relocate. The child’s relationship with the father and his family will be maintained by orders as discussed above.
The capacity of both parents to meet the child’s needs are discussed above. In a physical sense the mother and the father and his wife provide most appropriately for the child’s day to day needs. Whilst they have different parenting styles, both need to accept what happens in the others household. Otherwise, the mother needs to address her over engagement with the child and the father his under engagement as perceived by the child.
One of the child’s characteristics is her country background. It is important that her connections in this regard are maintained by appropriate time with the father that is, it appears, spent mostly on the property. School holiday time and extended weekends where available will ensure that this happens.
The protection of the child from psychological harm arising from ongoing parental conflict and intractability properly concerned the Single Expert: See [166] above. The impact of such on the mother exacerbates her anxiety and perhaps heightens what she perceives as her protective engagement with the child. The child is clearly caught in the conflict, having been exposed to a number of incidents traversed in the evidence at trial. None of them do any credit to either parent. The real risk is that such incidents will continue to occur in the event that the parents remain in close proximity and the parental and family conflict continues unabated. The Single Expert was of the view that “based on this assessment, it would seem that any risk, if it indeed exists is more covert rather than overt and not high grade”. This reflects perhaps the insidious nature of the risk to this child in being exposed to relentless conflict. How to achieve this protection clearly does not lie in the parties remaining in close proximity as they presently are.
Both parties have demonstrate little reflective capacity as to the needs of the child. They have prioritised their ongoing battle over issues that in the scheme of things are minutiae. Their parental report card stands at present as a fail for both of them notwithstanding that they have been able to address the child’s day to day needs admirably. It is worth repeating the words of the Single Expert:
145.Based on this assessment, the parties need to be mindful that X is at risk of psychological harm as she tries to juggle the competing demands of her two parents who are caught in a hostile and unrelenting dispute. There is a long history of X being at the centre of the parental conflict and a parenting relationship that has been competitive rather than co-operative. The consequences of this type of harm are often harder to quantify but nonetheless they potentially have a very damaging effect on X’s emotional and psychological development.
The prospect of these parents remaining in close proximity in the Town A area would not augur well for this child.
The parental conflict has given rise to assertions as to aberrant behaviour on both sides.
Section 4AB(1) of the Act defines “family violence” as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
Overall, the Court is not satisfied that there has been family violence as defined in the Act. The mother has been too ready to complain and to report the father for what she perceives to be unacceptable conduct. Perhaps this is caused by the mother’s own anxieties or perhaps by what appears to be the father’s more rigid personality evidenced in the parties’ disparate parenting styles.
Otherwise, much has been contended about the issue of “social capital” that may be lost to the child in a move to Sydney. The reality is that many separations bring about dislocation of schooling, friendship groups and other aspects of a child’s then established life including engagement in extracurricular activities. Such can occur often in a most minor move within the confines of Sydney that necessitates a change of school. The child X is seen by all as an intelligent and outgoing child with the ability to make friends easily. The mother’s view is that she will settle into her new environment including schooling without much difficulty. It is not to be forgotten that the father’s time, should the mother relocate with the child, will afford him the opportunity to maintain the child’s contacts in the Town A area should he be inclined to do so. The issue of “social capital” is but one of many issues in this matter and should give way to an overall consideration and determination as to the child’s best interests.
The ICL took a primary position that the child should remain in the Town A area with the mother, with the father having substantial and significant time as referred to above including five nights a fortnight in school term and half school holidays. Should the mother elect to leave Town A without the child, the child should live with the father, spend alternate weekends and seven nights more than half the school holidays with the mother. Should the mother be allowed to relocate the child to Sydney, the ICL proposed that the child live with the mother and spend alternate weekends and seven nights more than half the school holidays with the father.
Should the mother live with the child in Sydney in temporal terms the difference in the father’s time offset by the longer holidays is overall about five or six nights per year. This can be accommodated by provision for long weekend time and time, otherwise, when the father is able to be in Sydney during school terms time.
Both parties are substantially in agreement as to electronic communication with the non-resident parent, overseas travel, non-denigration and other specific issues orders. Schooling will be as agreed but failing agreement as chosen by the mother.
By reason of the matters discussed above, the Court is satisfied that the best interests of the child are addressed by allowing the child to relocate with the mother to Sydney.
As to parental responsibility, the parties are in agreement as to equal shared parental responsibility with their position echoing the view of the Single Expert:
In the case of Mr Olmos and Ms Radev, orders for sole parental responsibility would marginalize one parent even more. It also sends a poor message to X about the maturity level of her parents when they cannot work together in her interests. While the parties, in particular Ms Radev, perceive they have limited options for effecting an improvement in their communication and therefore little hope of that eventuating, their level of acrimony, apart from precluding them from making joint decisions, is problematic because as mentioned earlier it is one of the factors that could lead to X eventually finding it too difficult to walk the delicate trajectory between two warring parents who have been involved in an unrelenting tug-o-war since the separation and maybe even prior.
Whilst the Court is required to consider equal time and or substantial and significant time, neither party contends for same and the exigencies of distance make substantial and significant time mostly impracticable.
The father’s time with the child should be maximised mostly in terms of those proposed by the mother providing as they do for additional time in school term time should the father be able to be in Sydney.
Specific issues orders will be made as sought by both parties save for any notification as to interstate travel. If such occurs during a party’s time with the child, that should be a matter for that party.
Orders will be made accordingly.
I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 April 2020.
Associate:
Date: 17 April 2020
- AGLC
- Olmos and Radev [2020] FamCA 248
- Case
- [2020] FamCA 248
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders for equal shared parental responsibility, the child's primary residence, and whether the mother should be permitted to relocate the child to Sydney. Further, the court needed to establish detailed arrangements for the child's time with the father, including during school terms and holidays, and provisions for communication between the child and the non-resident parent. The court also considered orders relating to international travel, the exchange of information regarding the child's health and education, and measures to promote positive co-parenting and communication.
Foster J made orders for equal shared parental responsibility, with the child to live with the mother. The mother was granted liberty to relocate the child to Sydney. The court then set out comprehensive orders for the child's time with the father, including specific arrangements for weekdays, weekends, school holidays, and public holidays, with provisions for changeovers in Town C. Orders were also made for electronic communication between the child and the non-resident parent, and for international travel with appropriate notification. The court further ordered that both parents be at liberty to obtain information about the child from various professionals and organisations, and to notify each other of medical attendances and significant health issues. Crucially, the parents were restrained from denigrating each other and were ordered to maintain updated contact details. The court also mandated a post-separation parenting course for the mother and referrals for psychological and therapeutic intervention for both parents, with the Independent Children's Lawyer to facilitate access to reports and monitor progress. The appointment of the Independent Children's Lawyer was continued for 12 months.
Orders
Orders of the court
1.
That the mother and father have equal shared parental responsibility for the child X born … 2010.
2.
That the said child live with the mother.
3.
That the mother be at liberty to relocate the child’s residence to Sydney.
4.
That the child spend time with the father as agreed between the mother and father in writing such writing to include SMS or email communication and in default of agreement as follows:
(a) During the child’s school term time each alternate weekend commencing on the first weekend after the resumption of school term from after school Friday or 3.30 pm if not a school day until 7.00 pm Sunday;
(b) That for the purposes of the child’s time with the father during the school term, the father shall collect the child from school if a school day or from the mother’s residence if not a school day provided always:
(i) That should the father elect he may notify the mother by no later than 48 hours before the commencement of the child’s time with him that changeover will take place at a location in Town C at 6.00 pm; and
(ii) That should the father elect he may notify the mother by no later than 48 hours before the end of the child’s time with him that changeover will take place at a location in Town C at 6.00 pm.
(c) That should the father choose to travel to Sydney for the purposes of time with the child during the school term otherwise than provided above, the child shall spend time with the father as agreed between the mother and father in writing and in default of agreement from after school Friday until before school Monday on not more than two occasions each school term provided always that the father provide to the mother not less than 14 days’ notice in writing of his intention to spend such time with the child.
(d) That during the child school holiday periods the child will spend time with the father as agreed between the parties in writing and in default of agreement as follows:
(i) for the whole of the school holiday period at the conclusion of Term One from 11.00 am on the first Saturday of such school holiday period until 7.00 pm on the Saturday before the resumption of school term and for the purposes of the child’s time with the father the father shall collect the child from the mother’s residence at the commencement of such time and the mother shall collect the child from the father at a location in Town C at the conclusion of such time.
(ii) for half of the child’s school holiday periods at the conclusion of school terms two and three being the first half in even‑numbered years and the second half in odd‑numbered years with the first half to commence at 11.00 am on the first Saturday of such school holiday period and conclude at 5.00 pm on the second Sunday of such school holiday period and with the second half to commence at 11.00 am on the second Sunday of such school holiday period and conclude at 5.00 pm on the day prior to the resumption of school term with changeovers to be effected at a location in Town C.
(iii) for half of the child’s school holiday period at the conclusion of school Term Four being the first half in each even-numbered year commencing at 11.00 am on the day following the conclusion of school term and concluding at 5.00 pm on the day nearest to the midpoint of the holiday period and being the second half in each odd-numbered year commencing at 11.00 am on the day nearest the midpoint of the holiday period and concluding at 5.00 pm on the Saturday before the resumption of school term with changeovers to be effected at a location in Town C.
5.
That the orders for the child’s time with the father as provided for above shall be subject to the following orders:
(a) that the child shall spend time with the father each Father’s Day weekend, if not otherwise spending time with the father, in substitution for the weekend time provided for in Order 4(a) above being the weekend time immediately before the Father’s Day weekend and provided always that the father’s weekend time as provided for in Order 4(a) above shall be suspended on the Mother’s Day weekend with the child, otherwise, to spend time with the father in substitution for such weekend on the weekend immediately before Mother’s Day.
(b) that in the event that the Easter festive period does not fall within the father’s time the child shall spend time with the father in each even-numbered year from 10.00 am Good Friday to 5.00 pm Easter Sunday and in each odd‑numbered year with the father from 10.00 am Easter Sunday to 5.00 pm Easter Monday with changeovers to be effected at a location in Town C.
6.
That the parent with whom the child is not spending time shall be at liberty to communicate with the child via electronic communication including telephone and/or FaceTime or such like at 6.00 pm each Tuesday and Thursday with that parent to initiate such communication and the parent with whom the child is spending time ensuring that the child is available for such communication.
7.
That the mother and father be permitted to take the child X born … 2010 out of Australia on holidays during time that the child is due to be spending time with that parent during the child’s school holiday periods provided that the other parent is provided with written notification of the holiday at least one month prior to departure with such notification including dates of departure from and return to Australia, copy of the travel itinerary provided by the travel agent or airline, copy of return airline ticket and details of how the child may be contacted whilst absent from Australia by telephone and/or other electronic communication.
8.
That the mother and father are authorised by reason of this order to obtain all reasonable information as would normally be available to a parent from any professional, body or organisation that holds information about the child including but not limited to doctors, health practitioners, hospitals, schools and sporting associations.
9.
That the mother and father shall as soon as practicable notify the other in the event that the child is required to attend upon a medical practitioner or hospital for any reason and, if practicable, notify the other not less than 24 hours prior to any such appointment or attendance.
10.
That the mother and father shall as soon as practicable notify the other as to any significant health issue concerning the child that occurs when the child is spending time with either of them.
11.
That the mother and father shall be and are hereby restrained from denigrating the other parent or a member of his or her household to or in the presence of the child and shall use their best endeavours to restrain any other person from doing so.
12.
That the mother and father shall keep the other informed of his or her current landline and mobile telephone number, email address and residential address and advise the other of any change in respect to same within 24 hours.
13.
That the mother shall as soon as practicable enrol and complete a post separation parenting course approved by the Independent Children’s Lawyer and provide to the Independent Children’s Lawyer a certificate of satisfactory completion of that course within six months from the date of these orders.
14.
That the mother and father shall within 14 days from the date of these orders do all things necessary to obtain a referral from a general practitioner to facilitate the child attending upon a child psychologist with the mother and father to facilitate the child’s continuing attendance for such therapeutic intervention as may be deemed necessary by the psychologist and for the purposes of this order the Independent Children’s Lawyer is at liberty to provide to the psychologist a copy of the Single Expert Report from Dr D.
15.
That the mother and the father within 14 days from the date of these orders do all things necessary to obtain from the general practitioner a referral to a family therapist/psychologist for the purposes of ongoing intervention, in particular, in relation to the nature of their relationship and poor communication with such therapist to be either a therapist upon which they will both attend or individual therapists as recommended by the general practitioner and for the purposes of this order the Independent Children’s Lawyer is at liberty to provide to such therapists/psychologists a copy of the Single Expert Report from Dr D.
16.
That the mother and father shall within seven days from this date sign all necessary directions and authorities as provided to them by the Independent Children’s Lawyer such as to authorise and permit the Independent Children’s Lawyer to communicate with the therapists and/or psychologists appointed pursuant to the previous orders and such as to facilitate the Independent Children’s Lawyer obtaining all necessary information from the said therapists and/or psychologists as to the parties’ engagement with the health practitioner, progress of therapy and/or intervention and any recommendations for intervention or treatment by such health practitioner.
17.
That for the purpose of the previous orders, the appointment of the Independent Children’s Lawyer shall continue for a period of 12 months from the date of these orders and at the expiration of that time, in the absence of any application by the Independent Children’s Lawyer, the Independent Children’s Lawyer’s appointment be discharged.
18.
That the Independent Children’s Lawyer shall have liberty to relist these proceedings as to implementation or enforcement of these orders by application to the Court in chambers in appropriate circumstances.
19.
That any application for costs incurred to date by the Independent Children’s Lawyer be made by way of written submission by the Independent Children’s Lawyer within 14 days from the date of these orders with either party to respond by way of written submission within 14 days therefrom and on completion of written submission judgment as to the Independent Children’s Lawyer’s costs is reserved to chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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