Pataki and Valdez

[2015] FamCA 1159

FAMILY COURT OF AUSTRALIA

PATAKI & VALDEZ [2015] FamCA 1159

FAMILY LAW – CHILDREN – equal shared parental responsibility – where international relocation sought – child’s passport to issue – considered whether the child’s autism and language skills would have a major impact should relocation occur – considered the impact of the relationship between the child and father should relocation occur.

Family Law Act 1975 (Cth) s 4, s 60DA, s 60 DAA, s 60DAC, s 60B, s 60CA, s 60CC, s 70, s 70M, s 111B

Family Law Regulations 1984 (Cth) r14

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

APPLICANT: Mr Pataki

RESPONDENT: Ms Valdez

INDEPENDENT CHILDREN’S LAWYER: Mr Smith

FILE NUMBER: BRC 2890 of 2012

DATE DELIVERED: 21 December 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 22, 23, 24 and 25 June and 10 and 11 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cameron

SOLICITORS FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: Ms Martinovic

SOLICITORS FOR THE RESPONDENT: Hogan Stanton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Wright

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Smith & Associates

Orders

1. That all previous parenting orders be discharged.

PARENTAL RESPONSIBILITY

1. That Ms Valdez (“the mother”) and Mr Pataki (“the father”) have equal shared parental responsibility for the child D born … 2009 (“the child”) in relation to the major long-term decisions including, but not limited to:

2.1.the education of the child – both current and future;

2.2.the child’s religious and cultural upbringing

2.3.the health of the child;

2.4.any change to the child’s living arrangements, including their residence, that may make it significantly more difficult for the child to spend time with any parent.

1. That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

3.1.they shall inform the other parent about the decision to be made;

3.2.they shall consult with each other on terms that they agree; and

3.3.they shall make a genuine effort to come to a joint decision.

1. That each parent be responsible for making decisions in relation to the child that are not major long-term decisions when the child is in their care.

LIVING ARRANGEMENTS, TIME AND COMMUNICATION

1. That the child shall live with the Mother.

2. That the child spend time with the Father at all times as agreed between the parties and failing agreement:

6.1.Commencing from Friday 29 January 2016, each alternate weekend from after school Friday to 5.00 pm Sunday (or to before school Monday in the event the Father’s work schedule can accommodate this).

6.2.If requested by the mother, on school days from after school until no later than 7:00pm, or such earlier time as may be stipulated by the mother.

Holiday time

1. That the child is to spend time with each parent for one half of all the child’s school holidays, with the Father to have the first half in odd numbered years and the second half in even numbered years. 

2. For the purposes of order 7, the first half of the child’s school holidays shall commence at 5.00 pm on the last day of the child’s school term and the second half shall conclude at 5:00pm on the last Sunday before school recommences.

3. Provided the mother gives the father at least 3 months notice of her intention to do so, then the mother is at liberty to spend her time with the child in the Christmas school holidays in even numbered years outside of Australia, in which event the father’s time with the child pursuant to order 11 hereof is suspended.

4. During the child’s school holidays, the Father’s time with the child pursuant to order 6.1 or order 6.2 shall be suspended and order 6.1 shall recommence operation of the first Friday after the recommencement of each school term and order 6.2 shall recommence as requested by the Mother.

Christmas

1. Subject to order 9, the child is to spend time with the Father and the Mother for Christmas as follows:-

   11.1.In odd numbered years, with the Father from 9.00 am 24 December until 2.00 pm 25 December and with the Mother from 2.00 pm 25 December to 5.00 pm 26 December; and

   11.2.In even numbered years, with the Mother from 9.00 am 24 December until 2.00 pm 25 December and with the Father from 2.00 pm 25 December to 5.00 pm 26 December.

Easter

1. The child is to spend time with the Father and the Mother for Easter as follows:-

   12.1.In odd numbered years, with the Father from 9.00 am Easter Saturday until 2.00 pm Easter Sunday and with the Mother from 2.00 pm Easter Sunday to 5.00 pm Easter Monday; and

   12.2.In even numbered years, with the Mother from 9.00 am Easter Saturday until 2.00 pm Easter Sunday and with the Father from 2.00 pm Easter Sunday to 5.00 pm Easter Monday.

Father’s Day and Mother’s Day 

13. In the event that Father’s Day falls on a weekend when the child is due to spend time with the Mother, the Father shall spend time with the child from 3.00 pm the preceding day to 5.00 pm on that day.

14. In the event that Mother’s Day falls on a weekend when the child is due to spend time with the Father, the Father will give up time with the child from 3.00 pm the preceding day to 5.00 pm on that day.

Child’s Birthday

15. In the event of the child’s birthday falls on a day when the child is due to attend school, the Father will spend time with the child from after school to 5.00 pm on that day.

16. In the event the child’s birthday falls on a day when the child is not due to attend school:

16.1.in odd numbered years the Father will spend time with the child from 9.00 am to 1.00 pm on that day and the Mother will spend time with the children from 1.00 pm to 5.00 pm on that day.

16.2.in even numbered years the Mother will spend time with the child from 9.00 am to 1.00 pm on that day and the Father will spend time with the child from 1.00 pm to 5.00 pm on that day.

Changeovers

17. That all changeovers, unless otherwise agreed between the parties, shall occur at the child’s school or (if it is not a school day, or if it is outside of school hours) the front gate of the Mother’s accommodation, at the start of the Father’s time with the child and at the conclusion of the Father’s time with the child.

Telephone and other communication

18. That the child shall communicate with the Father as agreed between the parties and failing agreement by Skype, telephone or other electronic means no less than three (3) times each week, at such times as may be agreed between the parties, and in default of agreement, on Monday, Tuesday and Thursday between 5:30pm and 6:00pm.

19. That the child is at liberty to communicate with the Father by telephone, post, e-mail, text message or via social networking sites at all reasonable times.

20. That when the child is communicating with the other parent each parent shall:

20.1.Ensure that the child is available to receive the telephone call or the Skype communication;

20.2.Arrange for the child to telephone or Skype the other parent on the following night if, for any unforeseen circumstance, the child missed the telephone call or the Skype communication from that parent;

20.3.Ensure that the child has privacy during his communication with the other parent.

SPECIFIC ISSUES

21. That the Mother and Father shall:

21.1.Keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 24 hours of such change;

21.2.Keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;

21.3.Inform the other as soon as is reasonable practicable of any serious medical condition, significant health issue or illness suffered by the child;

21.4.Keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child;

21.5.Refrain from consuming alcohol to excess or being under the influence of alcohol at a level higher than that which would enable that parent lawfully to operate a motor vehicle.

22. That by this order, the Mother and Father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at the parent’s request and cost, all information about the child’s educational progress and school related activities.

23. That by this order, the Mother and Father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

24. That the Mother provide to the Father, within 28 days of her receiving the same, a copy of any school report, official certificate or award obtained by the child.

25. That on no less than one occasion each year, the Mother provide to the Father a copy of any official school photograph in which the child appears.

26. That subject to the conditions imposed by the child’s school or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited, including parent teacher interviews.

27. That neither parent will denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and failing their compliance with such a direction shall remove the children from that environment immediately.

28. That neither parent shall discuss these proceedings with the child nor involve the child in any discussions regarding any issue in dispute between the parties.

29. That the Father shall sign within 14 days of a request being made by the Mother, from time to time, in writing any Application for an Australian Passport for the child and the Mother shall be entitled to keep that passport and shall provide an up to date photocopy of that passport to the Father from time to time.

30. That should the Father refuse or neglect to sign an Application for an Australian Passport for the child within 14 days of a written request being received by the Mother, the Registrar of the Family Court of Australia at Brisbane is appointed to sign that Application and to do all things necessary to ensure that the Application is validly executed on behalf of the Father.

31. That otherwise all outstanding applications be dismissed.

32. That the Independent Children’s Lawyer be discharged on the later of the expiration of the appeal period in relation to this judgment or the determination of any appeal that may be brought.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pataki & Valdez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2890/2012

Mr Pataki

Applicant

And

Ms Valdez

Respondent

REASONS FOR JUDGMENT

Introduction  

1. These proceedings concern the only child of the parties, being D, born in 2009 and therefore presently six years of age (“the child”).  As ultimately formulated, Mr Pataki (“the father”) seeks orders that he and Ms Valdez (“the mother”) have equal shared parental responsibility for the child, whom he proposes live with the mother but spend time with him in the first week of a fortnight, from after school on Friday until 7:00 pm on Monday, and in the second week from 5:00 pm Sunday until 7:00 pm Monday.  He further proposes that the mother be permitted to nominate school days when the child will spend from after school until 7:00 pm with the father.  He also seeks orders that the child spend time with him during school holidays, and on special days, and orders in relation to telephone communication.

2. By her Further Amended Response to Initiating Application filed 6 June 2014, the mother seeks orders for sole parental responsibility for the child, who she proposes live with her in Mexico.  She seeks orders that the father have a liberal communication regime with the child, and that if the father visits Mexico, he be permitted to spend reasonable amounts of time with the child, and likewise in the event that the mother visits Australia with the child (noting that the mother will use her best endeavours to visit Australia “at least once every second year”).   

3. The father opposes the mother having liberty to relocate to Mexico with the child.  However in the event that she were so permitted, then he sought a regime of orders which would see the child spend up to four weeks block holiday time with the father during the Mexican summer school holidays, such time to be spent either in Australia, Mexico, Canada or the United States, and up to a further two weeks of such time during the Mexican Christmas school holidays.  He also proposed a further block of up to two weeks on another occasion nominated by the father, save that such time would only be spent either in Mexico, Canada or the United States.

4. For her part, in the event that she was not permitted to relocate, then the mother sought the following regime in relation to parenting orders.  Firstly she proposed that there be equal shared parental responsibility for the child, and that the child live with her.  She further proposed that the child would spend time with the father on each alternative weekend from 3:00 pm Friday until before school on Monday.  As to school holidays, she proposed that they be shared equally, save that the mother sought permission to return to Mexico during the Christmas school holidays.  She also proposed orders for time on special days, and a communication regime that would see the child speak with the father each evening between 5:30 pm and 6:00 pm.

5. The Independent Children's Lawyer ultimately supported the mother’s application to relocate with the child.  In the event that the mother was not permitted to relocate, he proposed orders substantially in terms of those sought by the mother, save that the mother would have sole parental responsibility.

THE COURSE OF THE TRIAL

1. The trial had a somewhat unusual course.  Whilst it commenced before me on 22 June and proceeded to run for four days, at the conclusion of the hearing I made orders for the delivery of written submissions in relation to relevant Mexican law.  That timetable was not adhered to by the respondent.  Ultimately on 9 September 2015, the court re-listed the matter of its own motion, and on that occasion made orders intended to facilitate any application made by the mother to re-open her case to lead evidence in relation to relevant Mexican law.  That application was indeed made, and on 15 October 2015, by consent I ordered that both parties have leave to re-open their cases.  Ultimately the trial concluded before me by video link on 11 December 2015.

BACKGROUND FACTS

The father

1. The father was born in a Central European country in 1969 and is therefore presently 46 years of age.  I know little of his life prior to 2006, by which time he had migrated to Australia and was living in Melbourne, working in a hospitality business and studying at an English language school.  It was at that point when aged 37, that he met the mother who was also studying English at the language school.

The mother

1. The mother was born in 1974 in Mexico, and hence is presently 41 years of age.  Her mother was a school teacher.  She grew up in a home in Mexico City surrounded by extended family.  She obtained a degree from a University in Mexico and also obtained a post-graduate qualification.  She has 15 years of work experience in Mexico, commencing as a personal assistant but also later in sales.  It appears as though most of her employment was in the information technology sector.

2. For reasons which are not clear, the mother moved to Australia in about 2006 and it was in that year when aged 32 and studying in an English class in Melbourne, that she met the father.

The relationship

1. The relationship started with one enormous impediment.  The mother did not speak the father’s language.  The father spoke no Spanish.  Neither of the parties were particularly proficient in English.  Inevitably the parties therefore found communication difficult, and there seems to have been considerable misunderstanding and miscommunication in consequence.  Despite the fact that since they met, both have become much more proficient in English, I suspect there are still real problems with communication between them.

2. Initially the parties dated in Melbourne for about six months, but thereafter the mother returned to Mexico, whereas the father went to live in Brisbane.  The relationship, however, continued.  The mother quickly obtained employment as a sales executive with a company in December 2006, where she remained until January 2008.  In December 2007 the father travelled to Mexico where the parties married.  Thereafter the father returned to Brisbane, but the mother remained in Mexico, only emigrating in June 2008.  The parties commenced to cohabit in Brisbane.  In 2008 the mother fell pregnant with the child.  She returned to Mexico in April 2009 so as to be able to give birth in that country, with the father travelling to Mexico in June 2009.  The mother says that having the birth in Mexico was in part because neither party was eligible to access the free Australian health care system.

3. The child was born in mid-2009 and has three citizenships being Mexican, the Central European country and Australian.  Shortly after the child’s birth the father returned to Australia, and a few months later the mother and child followed.

4. From the outset the child was very demanding.  He constantly screamed and could not understand simple instructions.  He did not speak until he was around three years of age.  Although not diagnosed until much later, in fact it has transpired he suffers from autism.

5. The parties finally separated on 26 March 2012.  The child, then aged two years, remained in the mother’s care.

Post-separation

1. The mother and the child initially went into a women’s refuge, before obtaining housing commission accommodation where she still resides.  The father remained living in what was the former matrimonial home.

2. Initially the father would spend day time with the child when he was not at work.  Communication between the parties was initially very strained.

3. On 25 May 2012, then Federal Magistrate Baumann ordered that the child live with the mother, but spend time during three days of the week with the father.  No overnight time was ordered.  However it proved that the weekday time was unsuitable to the father because he was unable to utilise it, given the hours of his employment.

4. Ultimately, perhaps as an incident of the parties’ improving communication, they were able to, without recourse to the courts, negotiate the arrangements which prevailed at the start of the trial, which saw see the father spending alternate weekend time with the child, including one overnight.  Further, although the orders of Baumann FM did not provide for telephone communication, the parties have established a regime whereby the father telephones the child seemingly every evening.  Later, in the hiatus between the first and second stages of the trial, the parties negotiated the father spending time after school with the child as well.

5. The child has remained a high needs child.  However, and much to the mother’s credit, notwithstanding her difficulty in communicating in English, she has sought out and accessed a large number of supports for the child, which have led to what are termed “interventions” by relevant health professionals.  The child’s paediatrician, Dr T, gave evidence in the trial before me.  She said that when she first saw the child in 2012, she would have assessed him as a level two autistic child, with level one being the least complex, and three being the most complex case.  However she said that by virtue of the interventions which she has overseen, the child is now at what she would assess as level one.

1. She gave detailed evidence as to the sorts of problems which the child presented with.  The principal problem was with speech, but also he had few friends and could not tolerate others being around him.  She said that he was not then copying his parents, and whilst he had good motor skills, he engaged in a lot of repetitive play and had a short attention span.

2. She last saw the child in May of 2014, when she observed some considerable improvement.  However she noted that he still tended to play by throwing things, rather than any constructive engagement.

3. In part because of her need to care for the child, the mother has been somewhat socially isolated post-separation, and says she only has about three friends, although I had the impression that she did not regard those friendships as close but rather superficial.  Save for a recent period of employment which I shall discuss shortly, she has remained in receipt of social security benefits.  She became an Australian citizen in 2013.

4. From time to time the mother has undertaken courses in Brisbane.  This is because although her graduate qualifications are recognised in Australia, her post-graduate qualifications are not, but more importantly, she has found it difficult to obtain employment because of her limited English skills.  In between the two phases of the trial, she obtained a temporary full time job, but at the time of the conclusion of the trial, that had terminated, and she was again seeking employment.

5. Post-separation the father remained in his employment, albeit it was then only temporary employment.  However in early 2015 the father’s employment became full-time, which saw him thereupon become entitled to sick leave, four weeks annual leave and other benefits.

THE ISSUES

1. With the assistance of counsel for the parties, during the course of the trial the principal issues for determination in this case were identified.  That is to say that the resolution of those matters will substantially inform the regime of orders which should be made in the child’s best interests.  They are as follows:

   1.What is the nature of the relationship between the father and the child.

   2.Would the child benefit from a meaningful relationship with father.

   3.What benefits would relocating to Mexico have for the mother, particularly in relation to:

   (a)    her financial circumstances;

   (b)    her family support.

   4.What would be the effect on the child of immediate relocation to Mexico, and particularly, what would be the effect on him of:

   (a)    practically terminating his relationship with the father;

   (b)    the move to Mexico generally;

   (c)    any improvement in the mother’s parenting capacity consequent upon her relocating.

   5.If permitted to relocate with the child to Mexico, would the mother facilitate a meaningful relationship between the father and child.

   6.If he relocated to Mexico, would any orders for the child spending time or communicating with the father be practically enforceable by the father.

   7.What physical risk to the child would there be if the he lived in Mexico.

   8.What would be the effect on the mother’s parenting capacity if she were to remain living permanently in Australia.

   9.Given his autism, are there any substantial benefits to the child in remaining living in Australia rather than Mexico.

   10.Given the child’s autism, is there an age or point in his development at which a meaningful relationship with his father could be maintained long-distance, and if so:

   (a)    what is that likely age or point in development;

   (b)    how could the relationship by the father thereafter best be maintained;

   (c)    what would be the effect on the mother’s parenting capacity if she were to be required to remain in Australia until the child reaches the relevant age or point in his development.

2. I will consider those issues in advance of a general traverse of the s 60CC factors, but after I have considered the relevant statutory provisions and legal principles applicable to this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act 1975 (Cth) contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable,  the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents.  If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents.

6. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s.60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

7. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Relocation

1. The application of these provisions in the context of relocation cases has been discussed by many authorities.  In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:

   79. In considering whether the child should live with the parent who proposes to relocate a court:

   •Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   •Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   •Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   •If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   •In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   •When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   •Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   •Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   80. It follows from my exposition of the legislation, that earlier core principles:

   -that the child’s best interests remain the paramount but not sole consideration;

   -that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   - if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority.  It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

NATURE OF RELATIONSHIP BETWEEN FATHER AND CHILD

1. Ultimately this matter was not controversial, in that the father asserts that he has a close relationship with the child, and this was conceded in cross-examination by the mother.  She described the relationship as “warm and loving,” and agreed that the father was “a good dad” to the child.

WOULD THE CHILD BENEFIT FROM MEANINGFUL RELATIONSHIP WITH FATHER

1. Again this did not appear to be in contest.  The mother conceded that the child would substantially benefit from a meaningful relationship with the father, and in support of that said that it was her intention, if she were permitted to relocate, to do everything she could to ensure that the meaningful relationship continued.  She identified that the principal benefit which the child obtained from the relationship with the father was emotional support, and said that the time the child spent with the father was “quality time”.  She further said that she had noted the quality of time which the father spent with the child had improved since separation, although she had some reservations that the father’s change might have been at least partly associated with this litigation.  She conceded however that it may be also because the father believed the relationship with the child to be important and loved him.

2. The Family Report writer, Ms J, in her oral evidence said that in her opinion each parent offered different things to the child, who would therefore benefit from a meaningful relationship with both of them.  She said that the father’s relationship with the child gave balance to the child’s relationship with the mother.  I accept that evidence.

BENEFITS OF RELOCATION

Overview

1. The mother principally relied upon two bases as justifying relocation, namely the prospect of substantially improved financial circumstances if she were to relocate, and the benefit which she would obtain from close family support in Mexico.

Improved financial circumstances

1. At both stages of the trial, the mother was not in employment, although she had been in four months full-time employment during the interregnum.  Otherwise she is wholly reliant upon social security benefits, together with child support payments of $50.00 per week.  Her total income is $518.39 per week.  From this she has weekly expenditure of $490.00.  She was not challenged in relation to that.

2. However on 6 July 2015, the mother commenced temporary, but full time, employment for three months (although it ultimately proved to be four).  The evidence did not disclose her earnings in this position, but it may safely be assumed that it was more than she earns from social security benefits.  The position was only temporary, as it was to cover a permanent employee who was on leave for that time.

3. Past efforts by the mother to obtain employment post-separation have not been successful.  A major impediment to her obtaining such work is her lack of proficiency with English, although during the course of the proceedings, she appeared to have a significant command of the language, only needing assistance from the interpreter that was provided on occasion when dealing with more difficult concepts or words.

4. An additional difficulty has been that some of the mother’s Mexican qualifications either are not recognised or carry little weight in Australia, and the skills transfer from her Mexican employment does not appear to be easy, or at least easy to sell to Australian employers.  Therefore whilst it might be thought that her recent block of full time employment will stand her in good stead for being able to obtain ongoing employment in Australia, it is by no means certain, and indeed her subsequent efforts to obtain employment have not yet been successful.

5. A further difficulty is in relation to her ability to juggle full time employment with care of the child.  At the time of the first phase of the trial, that was made harder because she did not have either a valid driver’s licence, or a motor vehicle.  She was therefore dependent upon public transport.

6. However whilst in her recent employment, the mother was able to not only obtain a drivers licence, but also purchase a car.  I infer that this has alleviated her dependence on public transport.

7. The mother would prefer part-time employment, which would enable her to be available prior to school, or after school, or both, for the child.  Whilst the child has in the past had time in after school care, his autism created difficulties with that.

8. As finally crafted, the father’s orders proposed that he would spend time with the child from after school until 7:00 pm on any week night requested by the mother, and would drop the child back at the mother’s unit.  He is able to offer that because his work, whilst requiring him to start early, sees him finish at 2:00 pm.  He also has a licence and a motor vehicle.  Curiously, in the alternative orders which the mother proposed in the event that she were not permitted to relocate, she did not seek to have any such arrangement ordered as against the father.  In any event, the father’s offer does not assist with the difficulties of the mother getting the child to school, and then herself to any employment, in the morning.

9. The mother says that if she were permitted to relocate with the child to Mexico, she would be substantially financially better off.  She estimated that her income in Australian dollars would be $875.00 per week, and her expenses would be only $85.00.  Turning firstly to the anticipated wages, these were presumably estimated by reference to her earnings when she last worked in Mexico.  As to that, she had, according to her affidavits, 15 years of employment in Mexico, most recently being six years working as a sales executive for two companies.

10. The mother annexed to her affidavit several expressions of interest by Mexican companies which she obtained in 2014.  They were not offers of employment per se, but rather invitations for the mother to commence a selection process for particular positions.  They appear to be sales related positions, with at least some component of the remuneration being commission based.

1. The father says that there is no certainty that the mother would obtain employment in Mexico, but her past history of employment would tend to suggest that she holds good prospects of obtaining some form of work there.  The mother says that the sort of employment for which she is suited for does not require her to keep standard office hours, but would afford her some flexibility, as it is a matter for her to arrange her own appointments diary.  That would therefore enable her to be available both before and after school when required.

2. As to the mother’s Mexican expenses, much of the savings relate to firstly, the apparent lower cost of living in Mexico, and secondly, the fact that accommodation would be provided free of charge either by living with the maternal grandmother or other relatives.

3. No challenge was made to the mother’s argument that she would be financially better off in Mexico, at least compared to her present position of being in receipt of Social Security payments in Australia.

4. Upon balance I am satisfied that indeed the mother would be financially advantaged by relocating to Mexico.  In so concluding I do not overlook the possibility that she may not be able to obtain full time employment, whether immediately or at all, but doing the best I can on the material, I am satisfied that she would have good prospects of getting such work.

Family support

1. The mother has no family members living in Australia.  All of her family apparently reside in Mexico, with most, it seems, being in Mexico City.

2. Not only did the mother depose to her expectation that she would have greater family support if she were permitted to relocate, she also called evidence from the maternal grandmother and a cousin to that effect.  Both of those witnesses reside in what is described as the “[Valdez] family property” which appears to be a cluster of houses at the rear of a factory which has been in the family for at least two generations.  The maternal grandmother’s unchallenged evidence was that she is a retired school teacher, financially well-off, at least in relative terms, and presently residing in a single storey house which has four bedrooms in it, together with additional space which could be converted into further bedrooms if the mother and child were permitted to relocate.  She said that the mother and child would each have an individual bedroom.  Within the housing complex there reside many family members, which would enable not only the child to interact with them, but also allow the mother to obtain assistance and respite from time to time, which are not presently available to her in Australia.  The maternal grandmother’s evidence was that the school which it is proposed that the child attend, is only four blocks from her house, and she could readily walk the child to and from school of a morning and afternoon if required.  She would also be willing to care for the child on other occasions if the mother was not available, or wish to have some time to herself.

3. It also appears as though there are three motor vehicles kept at the family housing area, which would be available for use by the mother if required.

4. The mother’s cousin also gave evidence that she would be able to spend time with the child and help the mother with his daily care, should she sometimes wish it.

5. None of this evidence was controversial.

6. I am satisfied on the evidence that the mother would substantially benefit from family support in the event that she were permitted to relocate to Mexico.

7. The benefits which flow from that family support would not be insignificant.  As I have discussed, in Australia, the mother feels alone and unsupported.  The Family Report writer, Ms J, described the mother’s life in Australia as being “a task needed to be done”.  She said the mother perceives – largely correctly – that the task of raising the child, with the additional difficulties that his autism gives rise to, was principally reliant on her, and she is worried about her physical condition, particularly the recurrent back problems which she has arising from scoliosis.  It can be expected that, given the presence of direct family support, the mother’s worries in relation to such matters would, if not wholly abate, then substantially reduce.

8. The mother’s complaint, during the first phase of the trial, was that the father did not provide the sort of support that her family could.  However during the hiatus in the hearing, in fact the father commenced to spend two afternoons a week with the child, p icking him up from after school, although the father was not keeping the child to 7:00pm, but returning him to the mother’s home by about 5:00 pm.  The father’s explanation for that seemed to lie in his need to go to bed early, as he rises at 3:30 am to get to work on time.

9. The mother argued that the father’s increased engagement with the child after the first phase of the trial was only forensically driven, and once the trial was finally concluded, would reduce.  However that overlooks two important facts.  The first is that at the conclusion of the first hearing, the father’s evidence was that he intended to move house to be closer to the mother’s home, so as to be able to spend time with the child during the week.  Notwithstanding that there was then no reason to believe that the trial would resume again, nonetheless the father did indeed so move.

10. The second is that the father then sought – to which the mother agreed – to spend after school time with the child.  Again, there was no reason, when that commenced, to think that I would ever get to hear of it, as both parties’ cases were closed.  Both those matters persuade me that the father’s motives were not forensically driven.

11. However the mother and Independent Children's Lawyer did criticise the father’s level of subsequent engagement with the child, describing it as “reactive, rather than proactive.”  For instance, it was the mother’s evidence that she asked for the father’s increased assistance, rather than him offering it.

12. However a good example of the exact opposite was when, shortly after the end of the first phase of the trial, the child fell ill and needed to have medical treatment.  The father offered to – and did – drive the mother and child to the necessary appointments.  Later, after the mother had some surgery, again the father, for two or three weeks, assisted the mother by driving her to and from supermarkets for grocery shopping, and carried her groceries up the stairs to her unit.  Ultimately the mother advised the father she no longer needed his assistance in that regard.  Plainly, the father has, to a degree, improved his support of the mother.

13. That said, I think it is fair to say that the father has been something of a passenger when it comes to the proactive meeting of the child’s needs.  It is the mother who still attends to the organisation of medical and like appointments for the child, and the mother who primarily attends to the organisation of matters associated with his autism, including liaising with the school.  The father is not altogether passive in his involvement in such matters, but he is by no means equally driving them with the mother.  This is consistent with his role since separation.  There is therefore some justification for the mother’s pessimistic evidence that sometimes she feels like she is a sole parent.  Simply put, the father does not equally shoulder the burden of the very considerable responsibilities associated with raising this high needs child.  Relocation would permit, in effect, the mother to share that burden with other family members where required. 

Conclusion

1. I am therefore satisfied that, if the mother were permitted to relocate to Mexico with the child, her financial circumstances would likely substantially improve, and there is no doubt that she would have access to support far beyond that which is available to her in Australia.  Those benefits are likely to significantly reduce the mother’s present worries and concerns, both in relation to financial matters and her capacity to continue to care, largely single-handedly, for the child.

EFFECT ON CHILD OF RELOCTION

Overview

1. In fairness to the mother, she did not contend that relocation to Mexico would be of immediate benefit to the child.  Tacitly she appeared to accept that the immediate effect on the child would be significant and adverse.  However in substance, her case appeared to be that with the passage of time, it was likely that such disadvantages as attended upon relocation would reduce.  On the other hand, the father emphasised that the risks to the child consequent upon relocation were so great as to outweigh the benefits to the mother or child in any such move.  Particularly the father relied upon the inevitable reduction, or even practical termination, of the child’s relationship with him which the move would entail, and the practical difficulties for the child, who has never lived in Mexico and speaks little Spanish, which he would experience in adapting to his new life there.  The mother sought to downplay the significance of those, or at least their long term impact on the child, and emphasised that the child would have the benefit of her increased parenting capacity consequent upon relocation.  I will discuss those matters individually.

Effect on child’s relationship with father

1. The inevitable consequence of the child relocating to Mexico, given that the father would not move there, is that his presently good relationship with his father will suffer considerably.  Instead of regular time with the father, there would only be intermittent holiday block time on either party’s proposal, potentially being enjoyed in North America generally, if the father were to travel there, or in Australia if the mother or child were to travel there.  Additionally the parties proposed that there would be, in the event that relocation were permitted, very liberal telephone and Skype communication afforded to the child and father.

2. Ms J was troubled by the impact on the father/child relationship of relocation.  Her evidence was that there was no way that the father could continue to have the presently highly involved relationship with the child in that event (noting that since she gave her evidence, the father’s time with the child has further increased).  She said that relationship would be “near-impossible to maintain.”  She further said that phone or Skype communication could not compare to seeing the child face to face from week to week.  Whilst she said that the child’s autism would not help because he was “fairly wrapped up in his own narrow world” she emphasised that the main difficulty would be the lack of face-to-face time between the father and child.  She noted that at present the child does not appear to enjoy Skype communication, but accepted that perhaps that might have something to do with the data plan which the mother currently has, which would not be as restricted in terms of volume of data in the event she were in Mexico. 

3. She said that to optimise the value of Skype, the father would need to either engage in educational games with the child or other interactive online activities.  She noted that the child particularly loves electronic games and gadgets, and thought that it may be possible, with some imaginative exploration, to find things which the father and child could do together, and she emphasised that it was doing things together, rather than talking together, which would facilitate the maintenance of the relationship. 

4. However in cross-examination by counsel for the father, she agreed that to achieve that level of creativity, there would need to be a high degree of co-operation and ability to communicate between the mother and father, which was problematic.  She said that although on day to day matters, the mother and father appeared to be able to communicate, beyond that, they still experience difficulty.  She also agreed with the proposition that communication and co-operation would not be improved by the father’s inevitable feeling of devastation if the child were permitted to relocate, and she said that he would have understandable resentment arising from that which may cloud his ability to co-operate.

5. As to the holiday block time, she emphasised that the minimum period of any one block would need to be two weeks.  She said that although in her view the child has reached a stage of development where he would retain in his mind’s eye a picture of the father, and a memory of shared activities, there would nonetheless be a period of “warm up” when the child first began to again spend time with the father.  She said that it was important that once the child had “warmed up” with the father again, that he not then immediately leave.  Thus she justified a minimum period of two weeks, and would prefer a longer period of time if possible.  She also emphasised that if the mother were permitted to relocate this year, that it would be best if the father were able to travel to North America and spend block time with the child at the end of this year, rather than later, albeit she emphasised that that should not be at the expense of the second visit being deferred.[1]

   [1]Accepting that her evidence was given in June 2015.

6. Ms J’s unchallenged evidence was that the immediate effect upon the child of relocation to Mexico would be one of “substantial grief about not having dad around in his life.”  She said that she could not foreshadow how that sense of loss would be experienced in the medium term, but did note that all grief is worse at the beginning, and time can ameliorate the pain.  She said that the child would experience a lot of grief, although its intensity and duration may depend on how well the mother managed it.  She said that initially, there would be quite a shock to the child’s system upon relocation, because he has no experience of Mexican culture and little experience of its language, and she anticipated that it would take at least six months for the child to adapt, and perhaps longer.  She said that he was likely to act out a lot more than another child might in those circumstances, because of his autism.  She emphasised that he would need to call upon the relationship with his mother far more than he presently does whilst he adapts to the new life in Mexico.  In cross-examination by counsel for the father, she conceded that an estimate of six to nine months to resolve the grief was a best case scenario, and the most she could say was that the effects should be temporary, but with the number of factors in play, no one could make a confident prediction.

7. Ms J accepted that the child might feel a sense of abandonment by the father, or might blame himself for the situation.  Whilst she accepted that a child who experiences a sense of abandonment can have problems later in life, such as the ability to maintain relationships with other adults, she said that that was far more likely if the loss was of a primary care giver.  In that regard she said that although the child has a long standing and good relationship with the father, it was “not in the same ball park” as the relationship with the mother.  That said, she conceded that the reality of the move would be that there would be a very significant downgrading of the quality of the relationship between the father and the child, and that carried with it a real risk that the child would only end up having nothing more than a superficial relationship with the father.  She said that the minimisation of that risk could only be effected to some extent, and would require a lot of creative work by both parents.

8. I am satisfied that the relationship between the father and the child, if the child were to relocate to Mexico, would be profoundly affected by the lack of regular face-to-face time, compounded by child’s substantial grief, which may subside within six to nine months, but may take longer, and may never sufficiently be repaired.  In any event, the relationship with the father thereafter would be quite different to that which the child presently enjoys, and has a risk that the father would become only a superficial figure in the child’s life.

Effect of move to Mexico generally

1. The father in this context particularly emphasised the fact that the child speaks little Spanish, and has no understanding of Mexican life.  In fairness to the mother, those matters were not in dispute. The mother sought to minimise the likely adverse impacts on the child referable to those considerations if relocation were permitted.  However the immediate impact upon the child is likely to be profound.  Apart from the mother, no one else in her family apparently speaks English.  Only two children, of the proposed school’s student population of 120, speak English, and only two teachers speak English.  It appears as though all instruction takes place in Spanish, but perhaps some exception would be made for the child, at least initially.  However the simple fact of the matter is that, unless and until the child is able to speak fluently in Spanish, he will have substantial difficulty in speaking or communicating with others except via an interpreter, most likely his mother or a school teacher.

2. It is said that the child is resistant to speaking in Spanish.  In the past he has said that he does not like speaking in Spanish, or at least prefers English.  Further, it is not in dispute that the child has auditory comprehension problems sourced in his autism.  He largely learns visually, and finds it difficult to learn by listening.  Ms J was asked whether learning a foreign language for him would require a high degree of auditory skill, but said that whilst she expected that it would do so, it was outside her expertise.  She therefore could not say whether it was going to be a “major thing” for the child to learn Spanish, and suggested that the appropriate person to give such evidence would be a speech therapist.  No evidence from a speech therapist was put before me.  The best was Ms J’s evidence that, on a general level, it is easier for children to learn a second language than adults, given their stage of cognitive development, but she could not say whether that would be the case with this child, because of the potential impact of autism.

3. I inquired of her whether it might be easier, in the event that the child were to relocate, for him to learn Spanish in Australia before going.  She thought that there may be some difficulty in motivating the child to learn Spanish in an environment where he was not required to use it in order to effect day to day life.  Rather she thought that if the child were to relocate, it would be better for him to learn Spanish in Mexico.

4. Leaving aside the language issues, there will be other matters which the child will be required to adapt to.  It appears as though he will be living in a highly urban environment, perhaps with a high population density.  His proposed school does not appear to have the sorts of extensive grounds which Queensland primary schools tend to have, nor does it have a swimming pool (the child has recently taken to swimming, which he greatly enjoys).  Some attempt was made by the father to suggest that in fact the child would be living in a highly industrialised area, with dangerous air pollution, but ultimately those efforts largely failed.  Even still, no doubt there would be a considerable impact on the child arising from his new surroundings.

5. In this regard Ms J said that regularity of routine and environment is more important for autistic children more than other children.  In part, this informed her opinion that he would likely act out during the first six to nine months more than a non-autistic child would.

Improvement in mother’s parenting capacity

1. Ultimately this proved to be one of the significant planks of the mother’s case, although her trial affidavit material did not specifically raise it as a direct theme.  For instance, the mother did not say that she was presently unable to effectively parent the child in Australia, or directly say that in Mexico she would be able to parent the child better than she presently does.

1. Therefore ultimately the question really is whether it would be in the child’s best interests to permit relocation now, or never.  As I said to the parties during the course of the trial, this is a matter which is very finely balanced.  On the one hand, the child will likely have a more emotionally available mother if relocation is permitted; on the other hand, if relocation is permitted, he will lose substantial quality in the relationship with, and experience of, his father.

2. Albeit not without some hesitation, I have determined that the balance weighs in favour of the father’s position, and that the child’s best interests are to remain in Australia.  In so concluding I am particularly advertent of the objects specified in s 60B(1), and the underlying principles of those objects in s 60B(2).  The mother will not be permitted to relocate the child to Mexico.  However I am satisfied that the mother should be permitted to holiday with the child in Mexico during the block Christmas holiday time she has with him, albeit only in alternate years.

TIME AND COMMUNICATION WITH FATHER

1. The most substantial difference between the parties’ position in this respect is that the father wanted to see the child every weekend.  In my view, unless the mother is agreeable to such a course – which might be conceivable given that it would give her more time to herself – then she should not be deprived of herself being able to spend an uninterrupted weekend with the child.

2. The other difference between the parties’ positions is that the father wants to be obliged to care for the child in the event that the mother wishes him to do so between 3:00 pm and 7:00 pm any week day.  The mother did not seek such an order, however she did not oppose it.  Since the first four days of trial, in fact the parties agreed a regime which sees the father spend time with the child after school on two evenings, albeit, in fact, only until 5:00 pm.   In my view this aspect of the father’s proposed orders would be in the child’s best interests.

3. Therefore there will be orders as sought by the mother, save that there will also be orders that the father be obliged to care for the child between 3:00 pm and 7:00 pm on a weekday if the mother so requests.

CONCLUSION

1. For those reasons there will be orders as set out at the commencement of this judgment.     

I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 December 2015.

Associate:

Date: 21 December 2015