Olsen and Drewery

[2011] FamCA 1025

FAMILY COURT OF AUSTRALIA

OLSEN & DREWERY [2011] FamCA 1025

FAMILY LAW – CHILDREN – Relocation – where the mother applies to relocate to Country C with the parties’ three-year-old daughter to live with her new husband – where the father resists the mother’s Application – where the mother has had minimal face-to-face contact with her new husband, to whom she has been married for just over one year – where the mother and her husband have recently had a daughter together – where the mother has indicated that remaining in Australia is not an option available to her – where the child has a meaningful relationship with both of her parents and has a strong attachment to each – where the child currently spends substantial and significant time with each parent –  whether it is in the child’s best interests to relocate to Country C with her mother – where there will be significant changes regardless of the Court’s decision – where there will be greater stability and continuity in the child’s life if she remains in Australia – where it is in the best interests of the child to remain in Australia.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

AIF v AMS (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Cowley & Mendoza (2010) 43 FamLR 436
Donnell & Dovey (2010) 42 FamLR 559
Godfrey & Sanders [2007] FamCA 102
Hardie & Capris [2010] FamCA 1046
In the Marriage of Kress (1976) FLC 90-126
Lythow & Lythow (1976) FLC 90-007
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) 37 FamLR 461
U v U (2002) 211 CLR 238

APPLICANT: Ms Olsen

RESPONDENT: Mr Drewery

FILE NUMBER: BRC 3674 of 2011

DATE DELIVERED: 13 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bunning

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITOR FOR THE RESPONDENT: Springwood Lawyers

Orders

IT IS ORDERED THAT:

Parental Responsibility

1. The parents shall have equal shared parental responsibility for the child B (“the child”) born … 2008 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”).

2. The parents shall each have, during all such time that the child is in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Co-Parenting Arrangements as to Time

1. IT IS DECLARED that, by reason of the mother residing in Country C and the father residing in Australia, neither orders for equal time nor orders for substantial and significant time within the meaning of s 65DAA of the Act are reasonably practicable within the meaning of that section.

2. The child shall live with, spend time with, and/or communicate with each of her parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these Orders:

   (a)       The child shall live with the father in Australia;

   (b)The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate with the mother by telephone and/or Skype (or other such similar forms of communication) each Monday and Thursday between 6.30pm and 7.00pm (Brisbane local time), with the mother to initiate such calls, and at any reasonable time requested by the child.

   (c)The child shall spend time with the mother:

   (i)In either Country C or Australia, at the mother’s election, for the whole of either the June/July Australian school holidays or the September/October Australian school holiday periods with the mother being solely responsible for the cost of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy;

   (ii)For a period of four weeks in either Country C or Australia, at the mother’s election, during the Queensland December/January school holiday period with the parents being equally responsible for the costs of the child’s flights, as applicable, and any accompanying adult flights as might be desired or required by airline policy; and

   (iii)Any such travel during the December/January school holiday period is to include 25 and 26 December each alternate year only.

3. During any time that the child is absent from Australia in accordance with these Orders, the mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the child to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) with the father each Monday and Thursday between 6.30pm and 7.00pm (Brisbane local time), with the father to initiate such calls, and at any reasonable time requested by the child.

Provision of Information about the Child

1. Each party shall do all such things and sign all such documents as may be necessary or required to:

   (a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults, failing which this Order shall, of itself, constitute such authority;

   (b)Speak to, and receive oral or written communication from, any school or other educational institution, including any day care centres, attended by the child, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;

   (c)Keep the other parent appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the child (such as Skype and email), with any changes to same being notified to the other party within 48 hours of same occurring;

   (d)Notify as soon as reasonably practicable the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

2. The mother and father shall be at liberty to attend any and all extra-curricular activities undertaken by the child and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.

Dismissal of Other parenting Applications

1. All outstanding Applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other Orders

1. All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

2. Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3674 of 2011

Ms Olsen

Applicant

And

Mr Drewery

Respondent

REASONS FOR JUDGMENT

1. The mother of the child B (born in 2008) commenced a relationship with Mr D in April/May 2010. Mr D lives in Country C. The mother and Mr D together have a child, E, who was just seven weeks old (born in 2011) at the date of this hearing.  Mr D has a child of a previous relationship, F, who is aged three and who lives in Country C. He and F’s mother have a week-about caring arrangement with respect to her.

2. The mother seeks an order from this Court the effect of which would be to permit the child to live with her in Country C.

3. B’s father lives in Brisbane with his partner. They have been in a relationship since August 2010. They have no children. He is opposed to his daughter living in Country C.

4. The mother’s desire to relocate to Country C with the child is the catalyst for these current proceedings. Until that event was mooted, the parties had, to their credit, co-parented their young daughter with a high degree of cooperation and a focus upon her needs. Orders regulating the time that the child spent with each of her parents were not required until such time as the proposal to move was agitated.

5. The mother has given very careful consideration to her position which, she says, requires her to balance the interests of the child; the interests of E and F together; and a number of practical and other considerations relevant to each. She has, she said, considered carefully her position in the event that an Order is not made for the child to live with her in Country C; she says she will travel to Country C in any event.  The father says in that event the child should live with him.

6. The central issue in this case is, then, whether the child’s best interests lie in her living with her mother in Country C with Mr D, E and, in alternate weeks F or, on the contrary, whether those best interests point to her living in Brisbane with her father and his partner.

The Parties’ Proposals

1. The position of each of the parties distinguishes this case from one in which one or both parties put forward an alternative proposal in the event that relocation of the child is not permitted. (Contrast U v U (2002) 211 CLR 238 in particular Gaudron J at [31]). So, too, this case needs to be distinguished from a case in which a mother concedes that “if she has to choose between relocation and having her child live with her, she would choose to have her child live her” and the consequent risks in the assessment of her case outlined by Gaudron J in U v U at [37] (see too Gaudron J in AIF v AMS (1999) 199 CLR 160 at [94] and [95]).

2. With reference to other issues raised in those judgments, I record that I do not at all see the mother who “opts for relocation in preference to maintaining a close bond with her child” as “selfishly preferring her own interests to those of her child” (per Gaudron J in U v U above at [36]). Nor do I regard the mother’s “reasons for relocating” other than with “the seriousness they deserve” (per Gaudron J in U v U above at [36]). I recognise that the mother is perfectly free to seek to maintain for herself and her children the life which she says will be of benefit to them and productive of happiness for her. So, too, the right of the mother to choose where she lives is not gainsaid in these proceedings.

3. The issue for the Court is, which of the competing proposals put forward by the child’s parents is, in the circumstances in which the parents and the child each find themselves, in the child’s best interests.

4. Each of the decisions of the High Court earlier referred to were decided prior to the amendments to the Family Law Act 1975 (Cth) (“the Act”) by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) which introduced significant changes to Part VII of the Act. Part VII of the Act mandates a number of mandatory Considerations, to be examined within the stated Objects and Principles.

5. I do not propose to repeat here those Principles; I am cognisant of the legislative provisions and the Full Court decisions which have interpreted them. I have attempted to set out my understanding of those principles in Cowley & Mendoza (2010) 43 FamLR 436 and, more recently, in Hardie & Capris [2010] FamCA 1046. I make it clear that I rely here upon my understanding of those principles as outlined in those cases. I repeat in particular, what I said at paragraphs [38] – [40] in Cowley: findings need to be made which inform other aspects of the process upon which the Court must embark, including the power to make parenting orders in circumstances where s 65DAA applies.

6. In that respect, I cited in Cowley a passage from the Full Court decision in Starr & Duggan [2009] FamCAFC 115 where the Full Court, in referring to Taylor & Barker (2007) 37 FamLR 461 and Sealey & Archer [2008] FamCAFC 142, said that “the legislation does not mandate consideration of the relevant sections in any particular order” (although the Court went on to suggest a “logical approach”).

7. As has been noted, findings as to best interests inform a number of different, but related, aspects of the process: the rebuttal of the presumption of equal shared parental responsibility (s 61DA(4)); informing decisions relevant to s 65DAA(1)(a) or s 65DAA(2)(c); the application of the Objects and Principles of Part VII; as well as being the paramount consideration in making a particular parenting order (s 60CA)).

8. Although best interests plays multiple roles within Part VII, the Act mandates but one means of determining best interests in the particular circumstances applicable to the particular child the subject of the proceedings, namely an analysis of those considerations set out in s 60CC of the Act. (In that regard, see, in particular, Donnell & Dovey (2010) 42 FamLR 559 at [103]).

The Limited Nature of the Current Inquiry

1. The nature of the parties’ post-separation co-parenting relationship is marked by the mutual respect shown by one for the other. This is pointed out by the family consultant Mr G as being both commendable and, in the context of cases that are heard in this Court, unusual. It is also productive of a narrow ambit within which the child’s best interests are to be decided; very many of the matters that would otherwise be left to the Court to determine by reference to s 60CC are either the subject of agreement or not seriously challenged.

2. The parties are agreed that an order for equal shared parental responsibility should be made. The effect is to “condition power” in the manner explained by the High Court in MRR v GR (2010) 240 CLR 461. As that case directs, (at [15]) the issues posited by s 65DAA(1), must be concerned “with the reality of the situation of the parents and the child… s 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…”. (As is made clear, the same is equally true of “substantial and significant time parenting”).

3. The parties agree, and it cannot be doubted, that neither party’s proposal permits of a conclusion that either equal time or substantial and significant time is feasible or “reasonably practicable”. There is no alternative proposal by either party which brings either into consideration.

4. An analysis of the Statutory Considerations reveals agreement between the parties and/or obvious conclusions in respect of many of them.

5. It is not in dispute that the child would benefit from a meaningful relationship with each of the parties. Mr Bunning, counsel for the mother, refers to the fact that a meaningful relationship is not necessarily an optimal relationship. So much is undoubtedly true in the sense that “a meaningful or significant relationship with both parents is going to be of advantage to [the child]” (McCall & Clark (2009) FLC 93-405. See also, in relation to the specific submission, Kay J in Godfrey & Sanders [2007] FamCA 102). It is not in doubt that, for the child, a relationship with each of her parents is “important, significant and valuable” to her (Mazorski & Albright [2007] FamCA 520).

6. Whatever order is made, the components of the meaningful relationship that the child currently enjoys with each of her parents will change. But, it is, in effect, a part of each party’s case that, because a continuation of that relationship is beneficial to the child, a relationship with different component parts – both as to time and the nature and form of that time – will be of benefit to the child.

7. In terms of arriving at what might be in the child’s best interests, however, the respective proposals are of equal impact. Whatever proposal is preferred, either party will (assuming I find, as I do, that each will attempt to foster and promote alternative forms of time, e.g. Skype and phone, with the other parent) maintain, so much as is possible, such benefit for the child of the relationship as the new circumstances permit.

8. The balance of the relevant Statutory Considerations, whether Primary or Additional, can be seen to fall into three broad categories.

9. First are those that have no application to this case. There is no suggestion of family violence or abuse (s 60CC(2)(b)). Both parties agree that the child is not of an age or stage of maturity where her views will assist in determining her best interests (s 60CC(3)(a)). So, too, no issues of sex, lifestyle or background of the child’s parents, aboriginality, or family violence orders pertain (s 60CC(3)(g), (h), (j) and (k)).

10. Into a separate category fall matters which are plainly important to the child’s best interests but about which the parties are broadly in agreement in the sense that such differentiation as might exist between them is not such as to be of assistance in arriving at a decision about the child’s best interests.

11. The child plainly has a deep, loving and committed relationship with each of her parents. She is plainly closely bonded to each of her parents. Members of each party’s respective families have played varying roles, to one degree or another, in the child’s life. For example, the child’s maternal grandmother lived with the parties for a time and the maternal uncle continues to live with the mother and the child. Neither party appears to contend that these relationships are other than important to the child. An aspect of this consideration (s 60CC(3)(b)) is the subject of submissions by counsel for the mother which will be considered below.

12. It is also conceded by each of the parties that the other has the capacity to provide for the child’s intellectual, emotional and other needs. So much is clear from the nature of the co-parenting relationship that has existed post-separation (s 60CC(3)(f); s 60CC(4) and (4A)).

13. In a similar vein, neither party suggests that the capacity of the other party has been impaired as a result of the relationships which each of them has formed. Leaving aside what I regard as an understandable increase in some tensions consequent upon the prospect of the mother relocating to Country C, it seems to me that, on the whole, each of the parties accord to the other’s new partner appropriate respect and importance in the life of their former partner. Each acknowledges that those respective partners will, all else being equal, be an important part of the child’s future life, irrespective of which proposal is preferred as being in the child’s best interests (s 60CC(3)(b)).

Responsibilities of Parenthood

1. The Act’s abolition of fault has ramifications for the place of parties’ conduct within matrimonial proceedings. “Fault” or “conduct” was per se irrelevant but, plainly enough, the conduct of one or both parents which can be seen to have a direct relationship with issues pertaining to the best interests of children was relevant. (See e.g. In the Marriage of Kress (1976) FLC 90-126; Lythow & Lythow (1976) FLC 90-007).

2. Many of the Statutory Considerations can be seen to involve questions about the conduct of either or both parents. Family violence is an acute example. So, too, “the attitude to … the responsibilities of parenthood demonstrated by each of the child’s parents” might also be seen to involve an examination of the conduct of one or both parties as indeed might s 60CC(4) and (4A).

3. Those considerations (and others) heighten, as it seems to me, the fact that, as the High Court said, “…[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … Best interests are values, not facts.” (CDJ v VAJ (1998) 197 CLR 172 at 219) That said, considerable caution should attend the making of what might be described as “moral judgments” masquerading as findings about the best interests of a child. Yet, the legislature requires me to take account (if relevant) of the “attitude to the child and to the responsibilities of parenthood” demonstrated by each of the parents.

1. Relationships emerge from many different types of beginnings and ultimately may take different forms.  Predictions about their future health or longevity are tenuous at best. Here, questions and submissions alluded to what is asserted to be the precariousness of the relationship between the mother and Mr D.  I am not prepared to draw any predictive conclusion about that relationship.

2. However, an additional point, directly relevant to the Statutory Consideration just referred to, might also be seen to arise. Can it be said that an adverse finding ought be made as against the mother by reason of the confluence of a number of facts pertaining to that relationship?

3. The mother and her now husband met on the internet during the course of a “text-based alternative reality game”. She deposes to commencing a relationship via computer “outside of the game” which resulted in Mr D travelling to Australia some eight weeks or so after they had met on the internet. During that first period of face-to-face contact between them, the mother, at least, had decided that she had met her life partner. She had, to use her words, “fallen deeply in love”.  Mr D was in Australia on this occasion for about three weeks.

4. The mother travelled to Country C in September/October 2010 and stayed with Mr D for about four weeks. The child stayed with her father in Brisbane. At Christmas time December 2010/January 2011 Mr D again travelled to Australia and stayed again for about four weeks. At Easter-time in 2011 Mr D visited Australia for about five days and again in June/July that year for about five weeks.  On the latter occasion he was accompanied by his daughter, F, who is about the same age as the child.  It was during this visit that the mother and Mr D were married. Mr D again travelled to Australia for the birth of E on about 15 September and was planning to return to Country C at the end of November.

5. It might be observed that, up to his most recent visit, Mr D had spent a total of about 13 weeks with the child.  The child and F have spent about five weeks together.  F has spent no time with her new sister.  All three children have not spent time together.

6. After Mr D’s first visit to Australia, the mother thought she was pregnant. In the witness box the mother said she was “worried” by this event.  As it turned out the mother was not pregnant.  However, the mother became pregnant during the next visit by Mr D to Australia, at Christmas time 2010. As has been seen, E was born two months ago.  The birth of a child to the mother and Mr D obviously significantly complicates the issues falling for consideration in this case.

7. The mother was unable to particularise precisely when it was that her intention to live in Country C crystallised (or, conversely, when precisely she became aware that Mr D maintained that he could not move to Australia).  But, prior to the pregnancy, the mother (and, presumably, Mr D) knew that, one way or another, they would need to deal with the fact that: they each had children on opposite sides of the world; they each wanted to maintain a relationship with those children; and the needs of those very young children would place demands upon them.

8. Yet, within six months of perceiving a possible pregnancy as a worrying event in light of the sorts of issues to which reference has just been made, the mother in fact became pregnant. I was left to wonder (and did so aloud during the course of the proceedings) what findings, if any, ought be made in respect of s 60CC(3)(i) by reference to those facts.

9. The potential impact of a new child upon the dynamics just described must, on any view of it, have been profound.  The mother implicitly agreed, saying that “in hindsight, we should have been more careful”. That this is obvious is not to attach moral censure upon the mother (or Mr D) to those facts or to any lack of foresight. Rather, it calls into question whether the mother was truly predominating the best interests of the child in the sense of exhibiting the responsibilities of parenthood in and about the decisions that were made. That is all the more so, as it seems to me, in light of the “worrying” concern that she may have been pregnant only a few months previously.

10. The difficulty with a finding that the mother’s behaviour in and about the relationship with her now husband, and the birth of their child in particular, falls below a standard that might be described as an exemplification of the “attitude to the child or to the responsibilities of parenthood” is a problem shared with findings about many of the Statutory Considerations. If a finding is made that the mother falls below what might be described as an adequate “attitude to the responsibilities of parenthood” in the respect just referred to, what causative effect does such a finding have upon ultimate findings about orders that best meet the child’s best interests?  

11. Whilst mandated as potentially relevant to that determination by reason of s 60CC when looked at in the whole of the context of the circumstances here, it is in my judgment not persuasive of any central conclusion about whether the child’s best interests point to living with her mother in Country C, or living with her father in Australia.

12. While, as I said during the course of the hearing, the mother’s approach to the fledgling relationship with Mr D and the apparently less than cautious approach to the prospect of a pregnancy when these proceedings were live and the central issue of whether the child was to live here or in Country C had not yet been determined is a matter of significant importance, it nevertheless (somewhat ironically perhaps) does not assist me in making ultimate findings about the child’s best interests.

13. The finding would have the potential to be significantly more important in circumstances where I had serious concerns about the parenting capacity of the mother otherwise or, for example, if I had concerns about the nature of the relationship between the child and the mother. Here, I have no such concerns. As I said during the course of the hearing and as is plain from all of the evidence including in particular the evidence of the Family Consultant, the mother is otherwise a loving, caring and appropriate parent (as, indeed, is the father).

14. The same query might also be raised about the failure by the mother (and Mr D) to consider the possibility that any potential move by the mother to Country C might be postponed until the child reaches a later stage of development with a consequent greater opportunity for the child to grow and develop her relationship with her father. As Mr G pointed out in his evidence, a child of 7, 8 or 9 is, in developmental terms, a very different child to a child of 3. In my view one does not have to be a social scientist to appreciate that fact – so much is an ordinary incident of parental awareness.

15. Am I to judge the mother harshly – particularly in light of the fledgling nature of the relationship between she and Mr D – for her failure to postpone a proposed move to Country C?  Do I regard it as falling below an adequate standard with regard to parental responsibilities? I am inclined to make such a finding. In crude terms, I consider that there is an indecency of haste about decisions with wide-reaching ramifications for a young child that have the potential to impact not only upon her but upon another child in Country C and, now, a baby. 

16. But, again, I have a difficulty in relating any such finding to an ultimate decision about best interests.  I do not consider that it points to, or assists in pointing to, an ultimate decision about whether the child should live with a loving parent in Country C or a loving parent in Australia.  Again, my reasons for that conclusion lie in the findings made about essential core considerations directly relevant to the child’s best interests.

17. In all the circumstances I propose to attach no weight to evidence relating to, or findings about, the Statutory Consideration just referred to.

Staying or Going?

1. Counsel for the father posed a series of questions to the mother in relation to whether or not she was able to stay in Australia.

2. I interrupted those questions in order to rule that they were irrelevant. The mother does not have to demonstrate compelling reasons for wishing to relocate to Country C and, in light of the fact that she has made her decision (as she is perfectly entitled to do) to do so, whether or not she is able to stay in Australia is, in my view, an irrelevant consideration.

3. So, too, a series of questions were posed to the father about his capacity to relocate to Country C, including his ability to find employment in that country and the like. No doubt those questions had their foundation in the statement by Hayne J in U v U (2002) 201 CLR 238 at [175].

4. But, just as a relocating parent need not show “compelling reasons” for a move, so, too, as it seems to me, a remaining parent need not show “compelling reasons” for staying. That is not to render the reasons for moving (or staying) irrelevant; wholly capricious reasons, or those attended by mala fides, are highly likely to see those reasons relevant to one or more Statutory Considerations.

5. Here, the mother wishes to move to be with the man whom she has now married and seeks to make a life with and to whom she has a daughter. The father wishes to remain in Australia where he has always lived, in the employment which he has, and within the relationship that he now has. The reasons for the mother going (or not staying) and the reasons for the father not going (or staying) need not, in the circumstances of this case, be taken any further than that.

The Decisive Considerations

1. Each and all of the matters earlier referred to will make it plain that this is an extremely finely balanced case. The child is fortunate that she has two loving, caring, thoughtful, committed parents who each sincerely want what is best for her.

2. The decision as to whether, at this age and stage of her development, the child’s best interests point to her living with her mother in Country C or with her father in Australia ultimately turns, in my judgment, on findings made in respect of three Additional Considerations: the nature of the relationship that the child has with each of her parents and her siblings; the willingness and capacity of each of the parties to facilitate a meaningful relationship between the child and the other party in the context of the associated issue of the practical difficulties and expenses associated with facilitating time; and the likely effect of any changes in the child’s circumstances, including the likely effect of relevant separations.

The Nature of Relationships

1. Mr G eschewed attributing to the mother the label “[The child’s] primary carer”. It is true that, historically, the mother has not been in remunerative employment and has been available on a full-time basis to care for the child. 

2. But, the inquiry is not into the relative quantities of time that the child might or might not have spent with her parents; it is the nature of the relationship which is important. Her parents separated when she was extremely young. She has had a committed father (see s 60CC(4) and (4A)) during the post-separation period. More recently, for a period of about 6 months subsequent to interim orders being made in May 2011, the child has been spending 6 nights a fortnight with her father. That is, while the primary nurturing by the mother when the child was an infant is acknowledged, so, too, is the importance of the father’s role and relationship with her as a toddler.

3. The Family Consultant, Mr G, opines that the child enjoys a very close relationship with each of her parents and that she is not more comforted by one or the other. He considers that she will experience an equal amount of grief or sense of loss upon separation from either of them. I accept these opinions. I consider that they are consistent with the other evidence before me and, in particular, the co-parenting relationship that these two parents have, to their great credit, cooperated to provide in the post-separation period.

4. I am not unaware that the child’s relationships with members of her extended family should also be considered (s 60CC(3)(b)(ii)). In that respect the point is made that she has spent time with the mother’s brother (who currently lives with her) and with the maternal grandmother (who, for a time, lived with the parents pre-separation). The father deposes in his affidavit that he will do as much as he can to continue to facilitate those relationships should the child stay in Australia and I have no reason to doubt his evidence in that respect. Indeed, he was not challenged in respect of it.

5. Counsel for the mother seeks to emphasise that there is another important relationship which must be taken into account if the Court is to properly consider the nature of the relationship that the child has with important people in her life, namely the relationship with her new sister E. He argues that if the mother travels to Country C there is the potential for a strong sibling relationship to develop between E and F which might have the practical effect (even assuming the best efforts of all concerned) of making the child feel somewhat excluded.

6. I agree that the relationship with E has the potential to be significant for the child and, indeed, for F. But, the primacy of the relationship between the child and each of her parents and the sense of grief or loss which she will undoubtedly experience if separated from either is, in my view, more important at this stage of her development.

7. In that respect, Mr G opined that it was possible to argue that the child has “mastered” the particularly sensitive period from birth until 3 and, in that respect, points to the fact that, to all intents and purposes, she appears to be a very “robust” child. However, he makes the point that, whichever loss she experiences, it is likely to be “an assault” on the attachments that have developed to each of her parents.

8. Mr G also makes the point that, in terms of the potential sibling relationship, a baby of E’s age is interested in her mother and (effectively) no one else and the importance of the baby’s need to interact socially with siblings and others is yet sometime off.

9. I find that the child will suffer a sense of grief and loss upon separation from either parent. To that extent, neither parent’s proposal offers a better outcome for the child. I am not prepared to find that the child will suffer a greater sense of grief or loss by reason of her separation from her mother emanating from according to the mother a particular role as her “primary carer”. The child is, in my view, securely attached and bonded to each parent and the sense of loss or grief she will experience cannot be differentiated.

10. Mr G opines, and I accept, that any type of familial relationship that brings for a child predictability, stability and sensitivity will be of benefit to the child. However, any such relationship does not provide a replacement for the central role that the relationship with each parent provides for a child of the child’s age.

11. I find that the potential relationship that the child has with F (whom she has seen for a total of five weeks) and the potential relationship with E (who is yet an infant some ten weeks old) are likely to be important to her. In a similar vein I find that the existing relationships that the child has with her maternal extended family (and to a lesser extent paternal extended family) to be important. I note that both the father’s brother and mother were in Court during the hearing, and the father deposes to his father, brother and mother, all of whom live interstate, travelling to Brisbane to visit him and the child.

12. As Mr G opines, and I agree, what the child needs is cooperative parenting and time with each of her parents on a regular basis facilitated by them living in close vicinity to each other. Whilst, in that sense, Mr G concludes in his recommendations that the child should live with the mother it is in my view clear that this is predicated upon both parties living in close vicinity of each other. That cannot occur on the proposals of either party.

Willingness and Capacity to Promote Time

1. Counsel for the father agitates for findings adverse to the mother’s willingness to promote time in the future emanating from what is contended to be a unilateral reduction in the father’s time consequent upon Mr D’s visit to Australia at the end of last year. The point is made that the mother’s ostensible reason for doing so was to obtain weekend time with the child but, it is said, the child was not at school and neither the mother nor Mr D were working. It is contended that the mother’s actions at this time, and her assertion as to “the legal position” relating to time between the child and the father, is indicative of what the mother may do when under stress and, it is said, when the mother is on the other side of the world the Court could not have any confidence that those types of incidents would not occur in the future.

2. The evidence also reveals that when the mother swore her affidavit she thought the cost of she and the child visiting Australia from Country C would be about $5000 per trip. Her evidence at trial is that the figure is likely to be less and more like $3000 per trip. The mother was questioned as to why, if that was the case, she was not proposing that the child visit her father in Australia three times per year rather than twice as she continues to propose. The mother confirmed that she proposes two visits per year, notwithstanding the fact that the total cost of three visits per year is likely to be less than the cost of the two visits per year spoken about in her affidavit.

3. Again, it is submitted that this is an indication of the underlying unwillingness of the mother to facilitate time when she is a significant geographic distance away.

4. In a similar vein, the father was cross-examined upon figures contained in his affidavit to the effect that, when adjustments were made for expenses incurred now that would not be incurred if the child was to live in Country C, he would have available to him about $4300 per year so as to permit him to travel to Country C.

5. The possibility of a child being removed to a place significantly geographically remote from the other parent produces strong feelings. It is no surprise that good people are not seen at their best in those circumstances. That is all the more so when that conflict needs to be played out ultimately in court proceedings. My strong impression is that when the stress of these proceedings has concluded, each of these parents will revert to the decent parents that they are with the consequence that each will attempt to muster whatever resources are available to them so as to facilitate the maximum amount of time between them and the child and each of them are likely to facilitate such time upon reasonable request.

6. I see nothing to differentiate the parties in terms of their willingness to promote time with the other parent. There will be significant difficulties wherever the child will live. In that respect each proposed communication by electronic means such as Skype. Whilst I would expect each of the parties to facilitate such time on a regular basis, I do not suggest that, for a three-year-old child communication by Skype can or would come near to, experiential face-to-face time between parent and child.

7. Capacity to facilitate time is a slightly different issue. A case is made that the father could find the sum of $4300 (and, thus, it is said, fund one trip per year to Country C). I find that the father would be highly motivated to visit the child in Country C. I find that, if the child lived in Country C, there would be some reduction in his current spending. I am not prepared to find that it would total as much as $4300.

8. Even assuming the same cost per trip as the mother asserts ($3000), I consider that on the evidence before me any additional trips would, despite the father’s best intentions, be unlikely.

1. The mother is, as she admits, effectively reliant upon Mr D to fund visits for she and the child to Australia if the child was to live in Country C with her.  Again, the point is made that their relationship is as yet fledgling. Mr D will soon have a new wife, new baby and, in alternate weeks, his three-year-old child forming part of his household. The experience will be new to all involved. As E grows and develops, expenses will inevitably be incurred. His largesse will be a significant factor in the facilitation of time between the child and her father if she is to live with the mother in Country C.

2. Mr D has funded a trip by the wife to Country C as well as a number of visits by himself (in one case with his daughter, F) to Australia. Each and all of those visits, he says, have been funded from his income. In addition, Mr D has drawn down on a mortgage in order to meet the mother’s legal expenses associated with these proceedings. The mother says she is “struggling” financially without the assistance of Mr D.

3. The mother alluded to the possibility of some other source of funding should Mr D cease provision in that respect but her evidence as to how, and by what means, such funding would be provided was by no means specific or concrete. Indeed, in so far as it was suggested that her mother might be a source of funds (her mother having assisted her with her rent in the past), she says that her mother is currently limited in her capacity to assist her to pay rent.

4. Evidence was adduced on behalf of the mother to the effect that “mirror orders” could be made in Country C and advice as to the legal effect of those orders in Country C was tendered by consent (Exhibit M1). However, no evidence before the Court suggests that any “mirror orders” or, indeed, other orders, could or would bind Mr D to orders that he meet the costs of trips by the mother and the child to Australia. Yet, for all that, the mother and Mr D know that the mother’s continued relationship with the child is central to their relationship. Thus far, they have found a way for them to have regular time together.

5. I consider that there is less “risk” involved in the facilitation of time with the child as regular as that which the geographic distance dictates if she is to live with her father in Australia. I cannot see that the mother would (whether by reference to the non-specific funding to which she alludes or by requested largesse from Mr D) not avail herself of time in Australia with the child. I consider the prospect of insufficient regularity in time with her “other” parent to be greater if the child was to live in Country C with her mother.

Changes and Separations

1. In a finely balanced case, I consider that the changes which both parties’ proposals will mean for the child is an extremely important consideration.

2. As I have said, a significant change for the child, on either proposal, is that one of her parents will be absent from her life for significant periods of time between visits. That change is, of itself, plainly the most dramatic and significant. But, that change is common to each proposal.

3. However, the mother proposes that the child will move to a country that is different culturally, climatically and linguistically to her own. The mother proposes that the child will join a household that, in each alternate week, will involve parental time being divided between her and a sibling of about the same age. She will enter a household in which parents who have spent about 18 weeks together since meeting on the internet about 18 months ago, will be growing and developing a relationship.

4. The child will also, on the mother’s case, enter a household where one three-year-old, and in alternate weeks two three-year-olds, will compete for attention with a tiny baby whose needs will plainly demand the mother and Mr D’s attention. More particularly a tiny baby’s needs will predominate the attention of the mother at the same time that the child will need her mother’s attention so as to assist in the adjustment to an entirely different lifestyle and country.

5. Mr Bunning argues on behalf of the mother that the changes for the child should not necessarily all be seen as detrimental. I agree. There is the potential for her to, in effect, become “bi-cultural” over time and, almost certainly, bi-lingual. She will have the opportunity to experience new and different things, including those that come from an entirely different climatic environment. I don’t dispute the central contention that the change ought not be seen necessarily as detrimental. Yet, what must be borne in mind is that all of the changes to which I have just referred will be occurring in circumstances where, on any view of it, the child will suffer the sense of grief and loss associated with being separated from another parent. That is profoundly important.

6. On the other hand, if the child is to live with her father in Australia, she will be experiencing his full-time care for the first time. She will, it seems, need to spend some time in childcare each week, although his partner says that she will play a role that may well limit the frequency of that. the child will experience the father’s partner in her life on a day-to-day basis (as distinct from the six nights a fortnight currently experienced over the last six months or so). The father confirms that his partner will, from time to time, carry out day-to-day care-giving tasks to the child.

7. On the other hand, the child will remain in an environment that is physically, geographically and linguistically familiar to her. She will have the opportunity to relate to members of her extended family (including her maternal extended family) with whom she already has a relationship to one degree or another.

8. Against that background must also be seen the evidence of Mr G that the child at 7, 8 or 9 would be much better placed in terms of developmental stability and personality strength to deal with the essential separation from one of her parents than she is now. Whilst the separation from one parent or the other is common to each proposal, in my view the maintenance of stability of place and relationships is more likely to be of assistance to her in adjusting to her grief and the sense of loss that separation from a loved parent involves at this age and stage of development.

9. There is evidence before me as to the mother’s current state of emotional health.  I have little doubt that these proceedings, and the mother’s predicament more generally, are causing her significant stress.  I have little doubt that an order to the effect that the child is not permitted to live in Country C with her would be greeted with great distress.  So, too, I have no doubt, will leaving the child behind if she travels to Country C as she plans and the child cannot go with her. I consider her great distress is genuine, deep felt and sincere.

10. Equally, I have no doubt that the father, too, is stressed by these proceedings and his predicament more generally.  He, too, will, I have little doubt, be distressed by a decision that would see the child live in Country C and would also be distressed if the child was departing to live permanently with her mother in Country C.  The father’s distress at such a prospect was manifest in the witness box and when Mr G saw him. I regard his distress, too, as genuine, deep felt, and sincere. 

11. There is no reliable evidence upon which I would be prepared to find that either scenario would have such an impact on either of the parents that it should tell, or weigh, in the orders made.  This case is to be distinguished from a case in which a parent will be effectively forced to suborn their legitimate desire to live where they choose with the potential for that to have an impact upon their day-to-day parenting. 

Summary and Conclusions

1. A central finding about the child’s best interests can, in my view, readily be made. The child’s best interests would be best served by each of her parents living in close proximity to the other and engaging in the form of regular cooperative co-parenting that they have erstwhile exhibited post-separation. That is Mr G’s opinion and I agree with it.

2. But, that is not a finding that can result in orders which are open to me upon the parties’ respective proposals.

3. In that respect, I should mention for the sake of completeness that the possibility of alternative proposals was canvassed during the hearing. (For example, an order that might in some manner accommodate a postponement of any move to Country C for a considerable period by reference to a stage of development the child will not yet reach for a number of years.) 

4. But, even if procedural fairness issues might be satisfied, such a course of action is likely to see each of the parties co-parenting with the spectre of future proceedings hanging over their heads. Not only would that, in my view, likely increase the possibility of future proceedings (a course of action to be avoided) but it would also militate against each of these otherwise decent and committed parents attempting to make a less than ideal situation for the child work best for her.  I can’t see how any such orders would benefit the child.

5. Each party’s proposal removes the child from one of the two most important people in her life.  Whilst acknowledging that a meaningful relationship is not (necessarily) an optimal relationship, there is no doubt in my mind that each party’s proposal will impact upon the nature and extent of the meaningful relationship that the child has with each parent (i.e. both the relocating parent and the remaining parent).  Those respective relationships are undoubtedly of benefit to her.

6. On the evidence before me, I draw no distinction in the nature of the relationship the child has with each parent as being persuasive of whether either proposal is in her best interests.  

7. I do not consider that the respective capacities of the parties to parent points to either party’s proposal offering more advantages for the child than the other.  So, too, I consider that the mother’s proposal to move to Country C (and the father’s proposal to stay here) will each cause the child grief and a sense of loss as a result of being separated from her other parent.  Each is disadvantageous to her in that sense.

8. As I have earlier explained, although it seems to me open to me to find – and I do find – that the actions of the mother in and about her new relationship point to greater concerns in respect of her attitude to the child and the responsibilities of parenthood, I do not consider that any such finding points to the mother’s parenting proposal being any more or less advantageous to the child than the father’s proposal.

9. While I consider that each of the parties will, once the stress of these proceedings and the changes they wreak abates, seek to facilitate electronic and face-to-face time between the child and her other parent, I consider that, in the sense described earlier in these reasons, there are greater risks associated with the father’s capacity to enjoy regular face-to-face time with the child if she was to live in Country C. 

10. In this finely balanced case, I consider that the father’s proposal better limits changes and promotes continuity and stability in a young child’s life.  The move to Country C will involve very significant changes for the child.  She will need to accommodate the loss of the very regular relationship with her father in a different culture with a new sister, the mother’s new partner, and her “new” sister, F, each alternate week.  That family grouping will need to accommodate the needs of an infant.  Those matters are additional matters for the child to cope with while dealing with her sense of grief and loss at separation from her father.

11. I consider that, in the father’s care, the child will also suffer the grief and sense of loss associated with her mother not being a very regular part of her life.  She will need to deal with, in addition, the more regular involvement of the father’s partner in her day-to-day life.  But, there are familiarities of place, language, culture and family that can serve as emotional touchstones. I consider this is beneficial to her.  

12. I consider that, on balance, the father’s proposal can be seen to offer more advantages for the child than the mother’s proposal.  I consider, ultimately, that  the father’s proposal better promotes the child’s best interests than the mother’s. 

13. I will order accordingly.

What if An Alternative Course is Adopted by Either Of the Parties?

1. The issue of what orders should be made in the event that the mother, contrary to her carefully considered position outlined in her evidence, decides to remain in Australia was not joined between these parties.  As a result of the mother eschewing such a course (and the father’s position that he could not and would not move to Country C), issues pertaining to the orders that might be made in the event that either party adopted a different course were not agitated.

2. It is, in my view, not appropriate for me to make orders which would seek to accommodate either such eventuality.

3. If it was to transpire, I fervently hope that the agreement and cooperation that marked the pre-proceedings parenting of the child would return. It will be plain from what I have earlier said and the findings earlier made that I have no doubt this course would be of the greatest benefit to her.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy delivered on 13 December 2011

Associate:

Date:  13 December 2011