Pearson & Wall
[2022] FedCFamC1F 873
Federal Circuit and Family Court of Australia
(DIVISION 1)
Pearson & Wall [2022] FedCFamC1F 873
File number(s): ADC 1693 of 2016 Judgment of: BERMAN J Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – CHILDREN – Relocation – With whom a child lives with and spends time with – Where final orders were made in 2019 – Where each party has one of the children in their primary care – Where the applicant travelled to New Zealand with one child for nine months without the consent of the respondent – Where the applicant seeks orders for her and the child to be permitted to relocate to New Zealand – Where in the alternative, the applicant seeks a reduction of the respondent’s time with the child – Where the respondent opposes the relocation application and seeks to increase her time with the child to equal time – Consideration of the sibling relationship – Consideration of the children’s wishes – Meaningful relationship – best interests of the children – Applicant permitted to relocate with the child after a period of two years – Orders.
FAMILY LAW – CHILDREN – Parental Responsibility – Where final orders were made in 2019 that provided for the parties to have equal shared responsibility for both children – Where the applicant now seeks that the parties have sole parental responsibility for the child in their respective primary care – Where the respondent seeks that she have sole parental responsibility for the child in her primary care and equal shared parental responsibility for the parties’ younger child – Where orders are made for the parties to have equal shared parental responsibility with respect to education for the younger child
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
65DAA, 69ZN, 69ZQ, 69ZR, 69ZT
Cases cited: AMS v AIF [1999] 199 CLR 160
Beckham v Desprez [2015] 55 Fam LR 310
Blanding v Blanding [2016] 55 Fam LR 218
Godfrey & Sanders [2007] 208 FLR 287
MRR v GR [2010] 240 CLR 461
Starr & Duggan [2009] FamCAFC 115
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 206 Date of hearing: 8-10 August 2022 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Stanley & Co Lawyers Counsel for the Respondent: Ms Lee Solicitor for the Respondent: Denise M Rieniets & Associates Pty Ltd ORDERS
ADC 1693 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEARSON
Applicant
AND: MS WALL
Respondent
order made by:
BERMAN J
DATE OF ORDER:
10 November 2022
THE COURT ORDERS:
1.That orders made 8 July 2019 are discharged.
2.That save as to education undertaken in Australia, the applicant shall have sole parental responsibility for Y born … 2012 (“Y”).
3.That the applicant and the respondent shall share the parental responsibility in respect of the education for Y and specifically as to the issue of where and at which school Y will undertake Secondary Education.
4.That the respondent shall have sole parental responsibility for X born … 2008 (“X”).
5.That X shall live with the respondent and spend time with the applicant in accordance with his wishes.
6.That Y shall live with the applicant.
7.That Y spend time with the respondent as follows:
(a)During school terms, from the conclusion of school on Friday to the commencement of school on the following Wednesday and each alternate week thereafter, to commence on the next occasion that Y spends time with the respondent pursuant to order 6.2.1 of final orders made 8 July 2019;
(b)During the short mid-year school holiday periods, with the respondent from the conclusion of school on the final day of term until 9.00 am on the middle Saturday, and with the applicant from 9.00 am on the middle Saturday to the commencement of school on the first day of term; and
(c)During the summer school holidays, with the respondent from the conclusion of school on the last day of term until 2.00 pm on … (the child’s birthday) and with the applicant from 2.00 pm on … to the commencement of school on the first day of term.
8.That Y spend time with the parties for special occasions as follows:
(a)For Christmas in 2022 and each alternate year thereafter, with the applicant from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day and with the respondent from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day;
(b)For Christmas in 2023 and each alternate year thereafter, with the respondent from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day and with the applicant from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day; and
(c)On each of the parties birthdays, in the event that they fall during a period when the child Y would not normally be in their care, from the conclusion of school (or 10.00 am if a non-school day) until 8.00 pm.
9.That Y remain enrolled in B School until the completion of her primary schooling.
10.That Y shall be enrolled in and attend such secondary school whether private or state based as may be agreed between the parties.
11.That all handovers that do not occur at Y’s school, shall occur at such location as may be agreed between the parties in writing.
12.That the applicant shall retain Y’s New Zealand passport and the respondent shall retain Y’s Australian passport with her Country K passport to remain surrendered to the Adelaide Registry of the Federal Circuit and Family Court of Australia, which passport shall only be available to the parties upon application to the Court PROVIDED THAT should Y reside in New Zealand, pursuant to these orders, the applicant shall retain all of the passports issued to Y.
13.That the parties be at liberty to attend at all parent/teacher interviews, all school activities and sporting or extracurricular activities to which parents would ordinarily be invited to attend, and to obtain copies of any school reports, photographs or other information as would be usually available to parents, at their own expense.
14.That each party keep the other advised of all treating medical practitioners or health professionals for the said children, with each party to be at liberty to contact or receive information from such practitioners at their own expense.
15.That if either child suffer a medical emergency, the parent with whom the child is residing at the time, shall notify the other parent as soon as is reasonably practicable, with both parents to be at liberty to visit the child in hospital, if admitted to hospital, or at home of the other parent at such times to be agreed in writing.
16.That as and from 15 January 2025, the applicant is at liberty to remove Y from the Commonwealth of Australia and the applicant be permitted to relocate the child to New Zealand.
17.That no later than 15 July 2024, the parties and Y do attend upon Ms O, or such other child psychologist as may be agreed, to ascertain and consider the wishes of Y and any change in her circumstance.
18.That the parties will do all such things, and sign all such documents, that may be necessary to give effect to the relocation of Y.
19.That upon Y taking up residence in New Zealand, she shall live with the applicant and spend time with the respondent as follows:
(a)For one week in each short school holiday period on such dates and times to be agreed between the parties and in default of agreement, from the first Saturday to the second Saturday in each short term school holiday period;
(b)For three weeks in each Christmas school holiday period, on such dates and times to be agreed between the parties and in default of agreement:
(i)In each alternate year, in weeks 2, 3 and 4 of the Christmas school holiday periods (noting that the period includes Christmas); and
(ii)In each intervening year, in weeks 4, 5 and 6 of the Christmas school holiday periods (noting that this does not include Christmas).
(c)For such other special occasions as may be agreed between the parties in writing and limited to one occasion per school term.
20.That the applicant shall facilitate the respondent and Y to have FaceTime communication at a time to be agreed between the parties, taking into account the time difference between New Zealand and Adelaide.
21.That travel expenses as may be required to give effect to Y traveling between New Zealand and Australia to spend time with the respondent, shall be borne by the applicant absolutely.
22.That the applicant shall be permitted to travel to New Zealand with Y and to give effect thereto, the current Airport Watch List Order shall be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearson & Wall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
Introduction
By Second Further Amended Application filed 9 August 2022, Ms Pearson (“the applicant”) seeks parenting orders in respect of X born in 2008 (“X”) and Y born in 2012 (“Y”) (collectively “the children”). By Amended Response filed 9 February 2022, Ms Wall (“the respondent”) opposes the orders sought by the applicant.
The applicant is the biological mother of Y. The respondent is the biological mother of X.
The parties agree that they are each intended to be “the other intended parent of their non-biological child”. For the purposes of the proceedings, the parties are considered as the parents of Y and X.
The litigation between the parties as to the future parenting arrangements for the children commenced in 2016 and was resolved by final Consent Orders being made on 8 July 2019 (“the 2019 final Orders”), summarised as follows:-
(1)That the parties have equal shared parental responsibility for the children.
(2)That X live with the respondent.
(3)That Y live with the applicant.
(4)That the children spend time with each of the parties with the intention that the time the siblings are together is maximised.
(5)That the parties sign all documents necessary to facilitate the issue of New Zealand and Country K passports for Y, with the passports to be retained by the applicant.
(6)That the children continue to attend at the B School but that X shall either attend at the D School or the F School for his secondary education.
(7)That the parties are restrained from enrolling Y at any secondary school without the prior written consent of the other party having been first obtained.
(8)That the parties exchange information in respect of medical practitioners or health practitioners for each of the children.
(9)That the parties not change the children’s principal place of residence from the Adelaide metropolitan area.
Notwithstanding the 2019 final Orders, the primary orders now sought by the applicant are to enable Y to relocate with the applicant to New Zealand and for Y to spend time with the respondent for block periods during each of the school holidays and for extended periods should the respondent travel to New Zealand.
In addition, the applicant’s proposal is that following the child’s relocation in or after January 2024, the children would have FaceTime communication together each evening and the parties would also have FaceTime communication each evening which, in the case of Y would involve the respondent, and for X would involve the applicant.
If the applicant is unsuccessful in seeking orders that would permit the relocation of Y to New Zealand in or after January 2024, then it is proposed that Y would spend time with the respondent each alternate weekend from the conclusion of school on Friday to 5.00 pm on Sunday, for one week during all short school holidays and for three weeks during the long school holidays.
The applicant seeks that X spend time with her similar to the arrangements as proposed for Y so that the children’s time together can be maximised.
If the applicant is not permitted to relocate Y to New Zealand, then she seeks that Y be enrolled for the balance of her primary schooling in P School and then as and from 2024 academic year, Y would be enrolled in R School.
The applicant seeks that she have sole parental responsibility for Y and the respondent to have sole parental responsibility for X.
The respondent opposes the orders sought by the applicant but in particular, orders that would enable Y to relocate to New Zealand.
Whilst the respondent seeks sole parental responsibility for X, she seeks that the parties have equal shared parental responsibility for Y.
The respondent also seeks orders that Y live with each of the parties on an equal shared care basis and for X to spend time with the applicant in accordance with his wishes.
The respondent seeks that Y remain enrolled in the B School until the conclusion of 2023, with the child attending F School in 2024.
The respondent seeks that Y’s passports remain surrendered to the Adelaide Registry of this Court and only available to the parties upon application.
Background
The applicant was born in New Zealand in 1976 and is now aged 46 years.
The respondent was born in Australia in 1975 and is now aged 47 years.
The applicant moved to Australia in 2002 and then to Adelaide in 2004.
The parties commenced a relationship in 2004 and separated in March 2016.
The children were both conceived with the assistance of separate and unrelated sperm donors. The biological fathers are known to the children.
X’s biological father was a work colleague of the parties. Y’s biological father, Mr T (“Mr T”), was a school friend of the applicant and later moved back to New Zealand. Mr T gave evidence in support of the orders sought by the applicant.
The applicant is not recorded as a parent on X’s birth certificate whereas the respondent is recorded as a parent on Y’s birth certificate.
During the course of the relationship, each of the parties maintained employment. The applicant is an educator and also runs her own business. The respondent is employed as a public servant.
The applicant is also undertaking further studies over a period of eight to eighteen months. Her financial support consists of a modest income from her business, a Centrelink benefit and some assistance both financial and physical from her parents.
On 25 March 2020, the applicant and Y travelled to New Zealand. The parties remain in dispute as to the intention of the applicant in travelling to New Zealand with Y. The respondent contends that the applicant intended to take advantage of the travel restrictions arising out of the Covid-19 pandemic and that the applicant knew that once she was in New Zealand, she would not easily be able to return Y to Australia.
The applicant denies that she acted with malice but concedes that she did not inform the respondent of her departure. Rather, she asserts that her trip to New Zealand was intended to be of short duration but the pandemic related travel restrictions prevented her from returning to Adelaide until 22 December 2020.
Whilst in New Zealand, the applicant and Y spent time with Mr T and the applicant’s extended family. The applicant also formed a romantic relationship with Ms U (“Ms U”) who resides in Auckland. The applicant and Ms U were school friends and re-established their relationship in December 2020 whilst the applicant was in New Zealand.
Whilst in New Zealand, the applicant re-commenced proceedings on 16 October 2020. The Initiating Application did not set out in detail the final orders sought. Instead, an order was sought that leave be granted for the applicant to particularise the final orders pending the release of a Family Assessment Report.
The applicant sought an interim order that notwithstanding the 2019 final Orders, upon her return to Adelaide she intended to enrol Y at P School rather than the B School. It appears that the enrolment of Y was without any notice having been given to the respondent.
It was conceded by the applicant, that there had been a breach of the 2019 final orders, which resulted in the applicant entering a bond for a period of nine months on the condition that she be of good behaviour and obey all orders of the Court.
The applicant acknowledges that whilst in New Zealand, she was not able to pay the ongoing rental commitment on her city accommodation and she was not able to persuade the landlord to renew her lease when it expired on 24 July 2020.
Upon the applicant’s return to Adelaide on 22 December 2020, she secured rental accommodation in J Town and enrolled Y in a local primary school. The applicant contends that if Y had been returned to the B School, this would have placed them in close proximity to the respondent and her family, and into a high conflict environment. The applicant also considered that X presented as such a physical risk to Y that even though he did not attend B School, his proximity to the school was such that the applicant felt compelled to change Y’s school without notice.
On 19 March 2021, orders were made that Y be placed on an Airport Watch List and that she be forthwith re-enrolled at the B School as and from the commencement of the second school term in 2021.
It is agreed that since the return of the applicant and Y to Australia, X has not spent any effective time with the applicant. The applicant concedes that all attempts to encourage X to spend time with her have failed and that X appears to have actively resisted any contact with her.
Y however, continues to spend significant and substantial time with the respondent in accordance with the 2019 final Orders.
The applicant seeks to relocate with Y to New Zealand on the basis that there is proximity to her family, she has secure employment in Auckland and a desire to pursue and explore the prospect of a close personal relationship forming with a former acquaintance.
Documents relied upon by the applicant
(1)Further Amended Initiating Application for final orders filed 28 April 2022.
(2)Trial Affidavit of the applicant filed 28 April 2022.
(3)Reply Affidavit of the applicant filed 15 July 2022.
(4)Affidavit of Ms V filed 28 April 2022.
(5)Affidavit of Mr T filed 6 July 2022.
Documents relied upon by the respondent
(1)Amended Response to Initiating Application filed 9 February 2022.
(2)Trial Affidavit of respondent filed 22 June 2022.
Each of the parties were represented by counsel who provided a detailed case outline document.
Treatment of evidence
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”). In determining and giving effect to the principles as set out therein, the parties were advised of the general duties and powers as set out in s 69ZQ of the Act and the ability that the Court has to make determinations, findings and an order at any stage of the proceedings if it will assist to better manage the trial, pursuant to s 69ZR of the Act.
Both counsel considered the treatment of any objections to evidence and in particular, whether the Court should dispense with the application of s 69ZT of the Act. The position of counsel was that the Court should not apply the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) as are specifically excluded by s 69ZT(1). The evidence that may be received which in the ordinary course would otherwise be inadmissible would be subject to a consideration of the weight that should be given rather than its exclusion (s 69ZT(3)).
Notwithstanding the provisions of s 69ZT of the Act, I am entitled to strike out evidence if I consider it to be scandalous, irrelevant or unnecessary.
Issues in dispute
Neither party alleges family violence or abuse, alcohol or substance use, but the applicant does contend that X was physically aggressive to Y, which has resulted in her being frightened of him.
The more significant contention is that the respondent does not consider that the applicant’s proposal to relocate Y to live with her in New Zealand is genuine, but rather that it is motivated by a desire to limit or possibly sever the relationship between Y and the respondent. The consequence for Y, as asserted by the respondent, is that she is at risk of emotional abuse in circumstances where Y has a close emotional attachment to the respondent and X.
Principles relevant to parenting orders
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The test of what is in the child’s best interest is to be considered by the application of the objects and principles of Pt VII pursuant to s 60B of the Act.
I bring to account the primary and additional considerations of matters as set out in s 60CC(2) and s 60CC(3) of the Act. There are no allegations that the children are at risk from the behaviour of either party.
I propose to adopt the following approach:-
(a)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(b)To have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(c)To have regard to the provisions of s 60CC of the Act in order to determine, in each case, what is in the child’s best interests;
(d)To have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(e)To have regard to the additional considers under s 60CC(3) of the Act; and
(f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment.
Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters, as set out in s 61DA of the Act (if relevant), would rebut the presumption.
In the circumstances of this case, the applicant seeks an order that she have sole parental responsibility for Y and the respondent to have sole parental responsibility for X. Whereas the respondent seeks an order to have equal shared parental responsibility for Y but she agrees that given X’s age and other relevant circumstances, she should have sole parental responsibility for X.
In circumstances where the parties seek an order of equal shared parental responsibility and it is not rebutted, then s 65DAA of the Act requires the Court to consider whether there should be an order for equal time. If not, then substantial and significant time must be considered. The test is whether the orders sought, would be in the best interests of the child and reasonably practicable. In MRR v GR [2010] 240 CLR 461, it was said that the considerations of whether equal time was feasible required a “practical assessment”.
Following the remarks of Finn J in Blanding v Blanding [2016] 55 Fam LR 218, where her Honour considered the Full Court decision in Beckham v Desprez [2015] 55 Fam LR 310, there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
The principles applicable to relocation cases
In AMS v AIF [1999] 199 CLR 160, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218. To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father ... or to be in the custody of the mother ... . That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody ...
The Full Court in Starr & Duggan [2009] FamCAFC 115 (“Starr & Duggan”), gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38. ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals. In the case of Starr & Duggan (supra), it was the wife’s application that she be permitted to relocate to Germany with the children.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children, and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90, the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
The evidence
The applicant
The applicant last saw X on Easter Saturday 2021 and before that, Christmas 2019.
If the applicant was permitted to relocate Y to New Zealand, then X could see her in New Zealand subject to his wishes but given the applicant intends to return to Australia on a regular basis, she seeks that X spends time with her on those occasions.
Whilst the applicant concedes that her relationship with X is difficult of recent date, there has been the recent exchange of some text messages and a brief telephone conversation with him in July. The applicant persists in attempting to communicate with X however, sometimes he answers her calls and at other times, he does not.
The applicant considers that there are better financial opportunities for her in New Zealand and places significant reliance on exhibit “1” which is a letter from Ms W offering a professional job opportunity.
In contrast, the applicant refers to her current financial circumstances namely, that she receives a Centrelink benefit of $650 per fortnight, combined Family Tax Benefit A and B in the sum of $320 per fortnight, child support paid by the respondent in the sum of $440 per month from which she deducts $700 per fortnight being her current rent.
The reasonable implication conveyed by the applicant, is that her financial prospects in New Zealand would likely be superior to that which she currently enjoys in Australia.
The applicant also revealed that she has formed a relationship with Ms U and would wish to explore whether that relationship could be ongoing. The applicant does not know whether the relationship would come to an end if she was not permitted to relocate with Y to New Zealand.
Not much information was available as to the circumstances of the applicant’s relationship with Ms U however, given her assertion that Ms U is unlikely to move to Australia, it is a reasonable assumption that in the absence of the applicant returning to New Zealand, the relationship such as it is, would likely come to an end.
The applicant acknowledged that Y has never met Ms U or her daughter, Z.
Under cross-examination the applicant conceded that her relationship with X is affectively non-existent other than scant communication by text.
An indication of the applicant’s view that the respondent has either actively stopped X from spending time with her or has failed to promote the relationship, is set out in paragraph 23 of the applicant’s trial affidavit where she asserts that between 8 November 2019 and 25 April 2022, the respondent has breached orders on 169 occasions.
The applicant has acknowledged that between July and November 2019, X ran away from her home on nine occasions and whilst not agreed by the respondent, she contends that at times X’s anger and aggression was uncontrollable.
Paragraphs 33 to 38 of the applicant’s trial affidavit sets out her detailed concerns in respect of X’s behaviour generally but in particular, as directed to Y.
The applicant contends that the respondent and X have an unhealthy relationship alleging that X liked to sleep with the respondent.
The applicant refers to a mental health care plan for X in November 2019, which sets out details of his panic attacks and high levels of depression, anxiety and stress. The applicant reported that in February 2020, X’s counsellor relayed his continued opposition and anxiety to spending time with the applicant.
In addition, the applicant alleges that in 2019 and up to the applicant’s departure with Y to New Zealand in 2020, X’s behaviour was excessively aggressive towards Y to the extent that whilst in New Zealand, the applicant reports that Y made the following disclosures:-
(a)That X had threatened to kill her by pointing a large carving knife in her direction;
(b)That X showed Y how to sharpen a metal ruler into a knife;
(c)That Y was scared to go to sleep out of concern that X might be stalking her;
(d)That when Y was told by the respondent that she would be returning to Adelaide on 1 July 2020 she felt sick;
(e)That Y was having nightmares about people trying to kill her; and
(f)That Y was terrified when X had a tantrum.
The applicant was asked to consider the observations made by Ms O, clinical psychologist who authored the Family Assessment Report dated 4 February 2022. Ms O recorded that Y considered the respondent and X to be people who “made her happy” and that whilst in New Zealand, she had missed them. Neither in the direct interview with Y, nor in the observations of interaction between Y, the respondent and X, did Ms O observe any inappropriate or aggressive conduct on the part of X, nor did Y display any fear or anxiety in X’s presence.
The applicant considered that Y had decided to either retract or not persist with allegations in respect of X’s threatening behaviour. The difference in the reporting of disclosures apparently made by Y to the applicant regarding X’s behaviour, and the lack of any complaint made by Y to Ms O, is stark. It raises the very real question as to whether Y had ever made the disclosures to the applicant and whether the concerns expressed by the applicant about X, were founded in substance.
A more relevant consideration is given the apparent strength of the sibling relationship, whether that would be maintained if Y lived in New Zealand.
As anticipated, the applicant was challenged as to her reason for traveling with Y to New Zealand at a time when the Covid-19 pandemic was unlikely to allow for an early return.
The applicant conceded that she was aware of the potential for travel restrictions arising out of Covid-19 when she made the decision to travel to New Zealand on 25 March 2020. Whilst the 2019 final Orders enabled the applicant to take Y to New Zealand up to four times each year during school holidays, the issue was whether she adopted a strategy of traveling at a time when it was likely the child’s return to Adelaide would be significantly delayed.
Moreover, the applicant regretted not telling the respondent of her departure because of her concern that she might be stopped.
It is uncontroversial that the applicant and Y remained in New Zealand for nine months. As a consequence of the delayed return, there were difficulties with Y returning to her school and the applicant ultimately took up residence in J Town.
The 2019 final Orders provided for Y to spend significant and substantial time with the respondent. The applicant well knew that a move to J Town, in circumstances where the respondent did not have ready access to transport, would result in significant inconvenience and disruption to the purpose underpinning the 2019 final Orders namely, the importance of maintaining Y’s relationship with the respondent and X.
As a result of the transfer of year 7 from primary school to high school, Y will finish at her current school at the end of 2023. If the applicant is unsuccessful in seeking orders that would permit Y to relocate to New Zealand in 2024, then it is proposed that she attends R School given its proximity to where the applicant currently resides.
The applicant’s evidence in relation to the alleged disclosures by Y as against X, was unconvincing, as was her explanation for the retention of Y in New Zealand for a period of nine months. The applicant’s evidence was unreliable and she did not impress as a witness of truth but rather was prone to exaggeration and hyperbole.
Mr T
Mr T is the biological father of Y.
Up until March 2020, he had spent little or no time with Y but during the nine-month stay in New Zealand, there were a number of telephone calls and frequent physical contact.
It is likely that Mr T would continue a significant level of interaction with Y if she were to live in New Zealand. It is also reasonable to find that Mr T is likely to support the applicant in terms of the provision of care for Y in particular, as she gets older.
Ms V
Ms V is the applicant’s mother. She had recently visited the applicant and Y in Australia between February to June 2020 but has developed a significant health issue which may impact upon her ability to visit Y in Adelaide. I accept that overseas travel may be problematic for Ms V.
The respondent
The respondent agreed that as part of the 2019 final orders, she understood the applicant’s desire to spend as much time as was possible with Y in New Zealand to enable the continued connection with her extended family.
It was put to the respondent that the applicant was prepared to pay for the costs of Y returning to Australia to see X. The respondent questioned whether the applicant would have the financial ability to do this in circumstances where the cost of travel between Adelaide and Auckland is between $500 to $700 return.
There is little doubt that the respondent does not trust the applicant and considers that if Y is permitted to reside permanently in New Zealand, then whatever orders might be in place, compliance will be subject to the applicant’s ability to fund the necessary travel and her readiness to comply with orders.
The respondent did concede that whilst Y had remained in New Zealand, she was not prevented from communicating directly with her on a daily basis. The respondent agreed that there had not been restriction, either as to frequency or as length of the communication.
The respondent considered the different parenting styles of the parties with the applicant being more authoritarian namely, a more strict parenting style rather than the respondent’s style, which she considered to be more about communication before punishment.
The conundrum for the respondent is that the households of the parties are now fifty kilometres apart. The respondent does not own a motor vehicle but is able to borrow her parent’s car. Her employment is city based and of long standing. Her income is relatively modest but she has the advantage of living in premises owned by her parents, which is also city based.
The respondent conceded that she did not fully appreciate X’s rejection of a relationship with the applicant. She acknowledged that during the interim proceedings on 17 February 2021, her counsel represented to the Court that there was a high expectation to spend time with the applicant. She acknowledged that X had not been spending time with the applicant before she had travelled to New Zealand.
The concern of the respondent is where Y should go to school in 2024. The intention of the parties historically, had been that both X and Y would attend F School given its proximity to B School and the current residence of the respondent (and the former residence of the applicant).
The respondent confirmed the apparent joint intention of the parties that Y would enrol in F School. The enrolment application was completed whilst the applicant was in New Zealand.
The distance between the two households is such that the respondent considers Y should attend F School even though X and Y would only be on the same campus for one year.
The respondent impressed a desire to do all that she could to maintain a relationship with Y even though she conceded that the cost of her traveling to New Zealand to spend time with Y would be very difficult.
The evidence of the respondent was forthright and I considered her to be a reliable witness.
Family Report writer
Ms O (“Ms O”) is a Clinical Psychologist having been conferred with a Master of Psychology (Clinical). Her most recent employment is as a Clinical Psychologist and Senior Clinical Practitioner. Prior to that, Ms O practiced as a clinical psychologist with a clear interest in child protection services, child and adolescent mental health services and as a Family Consultant.
Ms O is well known as a single expert witness.
The parties jointly instructed Ms O by letter of instruction dated 23 June 2021, advising her of an order made on 19 March 2021 and providing her a wide range of court documents including, Family Assessment Reports prepared by Ms AA, therapeutic notes from Ms BB and more recent Reports of Ms CC.
Following interview and assessment in November 2021, Ms O produced a Family Assessment Report dated 4 February 2022.
At paragraph 162 of the Family Assessment Report, Ms O makes recommendations, summarised as follows:-
·That the parties share parental responsibility for the children;
·That Y remain in South Australia;
·That the applicant have primary care of Y but with the child to spend five nights a fortnight with the respondent and preferably in a block time;
·That the respondent have primary care of X however, that he spends regular time with the applicant subject to his wishes;
·That the applicant and X engage in family therapy to address their issues;
·That Y remain at her current school for the balance of her primary school years (to the end of 2023) and that thereafter the parties discuss an appropriate high school; and
·That the parties share school holidays on a week about basis and that they be permitted to travel with the children out of South Australia, if the applicant wishes, with Y to New Zealand.
Ms O did not consider that there were risk factors other than emotional issues, which arise from the conflict between the parties and the earlier allegations of the applicant, that X had threatened and abused Y resulting in her fear of him.
Ms O appropriately identified the orders sought by each of the parties and the issues of contention between them in particular, the mistrust engendered by the applicant traveling with Y to New Zealand and as a consequence, of her inability to return to Australia for a period of nine months.
Ms O recorded that the applicant had acknowledged that Y had retracted her allegations of inappropriate, aggressive and threatening behaviour by X and in particular, an incident in which it was alleged that X had threatened Y with a carving knife.
The applicant did not resile from her strong belief that X had perpetrated threatening behaviour but that for reasons best known to Y, she was no longer repeating the allegations made whilst in New Zealand.
Ms O was asked to reflect upon the differences in the parenting styles evidenced by each of the parties. She considered that the applicant maintained a higher level of discipline and imposed rules, which at times Y opposed whereas the respondent was less authoritarian in her parenting style.
Whilst Ms O noted that by the applicant’s decision to live in J Town, the homes of each of the parties were now separated by fifty kilometres, the most important issue was still the different parenting styles imposed by the parties.
Ms O also noted that even though there was now significant mistrust between the parties, the applicant did not interfere with the respondent’s ability to communicate with Y, at times occurring on a daily basis. There was little or no communication between X and the applicant although, it was not suggested by Ms O that this indicated interference by the respondent.
In discussion with the respondent, Ms O recorded that the applicant considered Y to be clingy with her and was susceptible to stress and anxiety particularly arising out of the conflict between the applicant and the respondent.
At the time of interview, X was aged 13 years and 10 months.
X impressed Ms O as being able to have insight into the circumstances of the family and an understanding that there would likely be different orders made given the different circumstances that existed between him and Y.
X was viewed as being forthright in his decision not to spend time with the applicant. He gave Ms O a history of him being reluctant to see the applicant since he was 8 years of age and considered that the applicant had taken his “sister away for six months without telling anyone”.[1]
[1] Report of Ms O dated 4 February 2022, page 21
Ms O was satisfied that X was genuine in his expression of anger towards the applicant and could not see little advantage in him resuming a relationship with her. X expressed the view that the applicant was not a nice person and he was particularly concerned as to the allegations of aggressive and threatening behaviour towards Y as promoted by the applicant.
As anticipated, the significant focus of the Family Assessment and the Report centred upon Y’s relationship with each of the parties.
Ms O accepted that Y did not seem to have any concerns about the applicant and was aware of her extended family including, her biological father.
Similarly, Y did not think that there was anything about the applicant, which she did not like but acknowledged that the open hostility between the parties caused her upset and distress.
Consistent with the observations of Ms O, Y considered that the applicant adopted a more strict parenting style than that of the respondent.
Given the time that Y had spent in New Zealand, she had apparently made friends and acknowledged to Ms O that there were aspects of her time in New Zealand that she now missed.
Ms O considered that the more significant issue for Y was that a relocation to New Zealand would impact her relationship with the respondent and X even assuming that there were holiday periods when she could return to Australia.
In the Family Assessment Report, Ms O recorded a summary of Y’s dilemma as follows:-
140.When asked if she wished to move to New Zealand, [Y] reported “yes and no” explaining that if she moved, she would go to a “good school and had family there…but also no because” she would “miss everyone and family here”. [Y] initially reported that she had not spoken to either parent about the care arrangements, before noting she had “maybe” spoken to [the respondent]. However, she could not recall if this was “before or after New Zealand”.
At the Evaluation in the Family Assessment Report, Ms O summarised her position as follows:-
155.Another issue of dispute remained the issue of relocation, with [the applicant] keen to relocate with [Y] to New Zealand due to better job opportunities and to help develop [Y’s] relationship with her biological father and [the applicant’s] extended family. Whilst the writer appreciated the benefits this would provide for [Y], at the same time, it was noted that [Y] had developed a significant care relationship with [the respondent] and remained strongly connected with [X]. Moreover, in her own discussions, [Y] noted that one of the downfalls of remaining in New Zealand was missing her family in Adelaide. Given these relationships, the writer questioned [the applicant’s] request that [Y] be allowed to relocate to New Zealand as this could be detrimental to [Y’s] relationship with [the respondent] and [X], remove her from her community connections and could potentially impact upon her long-term emotional wellbeing. As such, it was considered that [Y] should remain in South Australia and her relationship with [the applicant] and [the respondent] be supported and encouraged.
Ms O could not support an equal shared care arrangement given the heightened conflict between the parties but also considered that orders should be made that would impose less frequent transitions between the households, noting that the issue of distance and where Y might ultimately attend high school, was a significant factor.
Whilst I accept that any significant separation from the respondent and X is likely to be upsetting to Y, Ms O was unable to assist in identifying the impact and the effect on Y of being separated from the respondent and X if relocation is permitted.
Parenting considerations
Meaningful relationship
I find that the evidence supports a finding that X has little or no relationship with the applicant. That is not to suggest that the applicant is unconcerned about X nor that she does not want a relationship with him but it recognises that no evidence has been presented of any relationship between the applicant and X for a number of years. I do not find that the respondent is responsible for X’s decision not to engage with the applicant but rather, that if the current circumstances are capable of explanation, it is more likely that X believes that the applicant planned to remain in New Zealand with Y by manipulating the travel restrictions imposed by the Covid-19 lockdown.
There is not currently a meaningful relationship between X and the applicant.
The same cannot be said in relation to Y and the respondent. The Family Consultant considers that Y is strongly bonded to the respondent and holds deep affection for her relationship with X.
Whilst the respondent may consider that the applicant is acting with malice in pursuing orders that involve a relocation of Y to New Zealand, the objective evidence is that whilst in Australia, the applicant considers Y should spend significant and substantial time with the respondent and X and should relocation be permitted, the respondent seeks orders that would enable a meaningful relationship to be maintained.
In Godfrey & Sanders [2007] 208 FLR 287, Kay J said:-
36.…. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Whilst there may be concerns as to the viability of the applicant’s proposal for the child’s return to Australia on a periodic basis, I am satisfied that the applicant is genuine in acknowledging that maintaining a meaningful relationship between Y and the respondent is in the child’s best interests.
A consideration of the Family Assessment Report and the evidence given by Ms O confirms the strength of the relationship between Y and the respondent. To some degree, the current circumstances of Y’s primary residence now at J Town and the respondent living in Adelaide, is likely to be a testing time.
The applicant seeks to be able to relocate with Y to New Zealand at the beginning of 2024, presumably to coincide with the start of the school year. Y will complete her year 6 education next year and if she remained in South Australia, she would start high school in 2024. She would be 12 years of age.
In relation to Y, this is not a case where the parties disagree as to the benefit that would be enjoyed by Y by her retaining an ongoing relationship with the respondent and X. The issue is whether at age 12, the relationship that has developed with the respondent could be maintained as a relationship of substance if relocation was permitted.
Children’s wishes
X has made his position clear, namely that he does not wish to engage with the applicant. The evidence of Ms O does not support an order that would force X to resume a relationship with the applicant.
Ms O was of the view that X was mature in his thinking and determined in his approach. He was 14 years of age at the time of the interview.
Given the evidence of X’s poor regard for the applicant and his age, it is unlikely that orders could be made that would impose upon him, a resumption of a relationship that X does not want.
That is not to suggest that at some point X might be more favourably disposed to a relationship with the applicant but such an outcome is not readily apparent.
The very nature of the applicant’s proposal that would see Y relocating to New Zealand appears to reinforce X’s negative perceptions for the applicant and her motives in seeking relocation.
The evidence of Ms O supports a finding that considerable weight should be given to X’s wishes and that his approach towards the applicant is underpinned by an appropriate level of maturity reflective of his age.
Y also impressed Ms O with her maturity and level of understanding of her predicament. She recognised the nature of the conflict in that she has a strong emotional attachment to the respondent and X but also enjoyed and could see the benefit of strengthening her relationship with her extended family, including her biological father, in New Zealand.
Whilst I do not consider that the views of Y should be determinative of the matter, nonetheless there can be little doubt that she is strongly attached to the respondent. I give significant weight to Y’s wishes.
Involvement of the parties in the children’s lives
Y has been in the primary care of the applicant but currently spends significant time in the care of the respondent.
As discussed, X has little or no residual relationship with the applicant.
Y currently attends the B School until the conclusion of 2023. The proximity of the school to the respondent and to the applicant, before her departure to New Zealand and her return to Australia, meant that both parties were able to engage in a range of curricular and extra-curricular activities pertaining to Y.
X currently attends the F School. The applicant does not engage with X’s education or extra-curricular activities. The applicant is concerned that the respondent is too liberal in her parenting of X and that he is allowed to make adult decisions in circumstances where he lacks the maturity into insight to do so.
I find that the current involvement by each of the parties in the lives of the children is entrenched and unlikely to change. The respondent will remain involved to a high level if allowed in the life of Y, whereas the applicant will have little or no ongoing involvement with X.
The parties remain in conflict with each other. Their relationship is undermined by mistrust and whilst they are able to communicate at a reasonable level, it is difficult to see them regaining a level of communication that would be beneficial to Y.
The extent to which each of the parties have maintained the children
To a significant degree, the applicant is responsible for Y whereas the respondent is responsible for X.
The focus of the proceedings has not been on the financial circumstances of the parties however, the respondent remains in long term and reasonably well paid employment as a public servant. Whereas the applicant, has struggled financially to support herself and relies upon a Centrelink benefit or pension supplemented by some modest income and child support of about $440 per month.
One of the basis for the Application to relocate is that the applicant considers there is an enhancement job opportunity in New Zealand and that she would have the ongoing support of her New Zealand based extended family.
There was little exploration of the likely financial circumstances of the applicant were she to remain in Australia. It is likely that her financial position will be unchanged from her current circumstances.
Neither party could be said to have a financial buffer however, it appears that the applicant is able to manage her J Town based accommodation whilst the respondent has the advantage of living in accommodation owned by her parents, supplemented by income from her secure employment.
A curious aspect of the proceedings is the lack of readily available transport by the respondent. Whilst the respondent has a drivers licence, she does not have a motor vehicle and if it is required, she prevails upon her parents.
To date, the respondent has been able to manage given that Y attends a city based primary school proximate to the respondent’s accommodation.
If not permitted to relocate, the applicant proposes that Y attend R School. Whilst the distance is considerable, a substantial difficulty arises in that even considering the orders promoted by the applicant, the respondent’s ability to transport Y to and from the applicant’s choice of high school is either severely compromised or not possible.
A similar difficulty arises if an order is made, as requested by the respondent, that Y attend F School. The financial ability of the applicant to engage in long distance travel may well be unsustainable given her modest income.
Ms O considered that the parties may have to properly explore a high school that may be equally distant between the parties. The difficulty is that no evidence has been presented which would enable the Court to consider whether such a suggestion is viable, in circumstances where the issue of catchment is not an option.
I am satisfied that whilst the financial circumstances of the parties are different, nonetheless each of the children are able to be maintained irrespective of which parenting proposal is preferred.
The Court should strive to impose the least disruption to the children’s lives as is reasonable in the circumstances.
Likely effect of the change in the children’s circumstances
X does not have a current relationship with the applicant and is strongly opposed to any resumption. He will be 15 years of age as at his next birthday and the evidence is that he is currently not motivated to resume a relationship with the applicant and certainly not on the terms that she seeks.
The likely consequence is that, if an order is made in terms of the applicant’s proposal that there be a resumption of time spending, it is unlikely to occur or would likely require some level of force, for X to attend. It would lead to inevitable noncompliance and conflict.
It would not be in the best interest of X that he be physically compelled to spend time with the applicant.
It is regrettable that X’s relationship with the applicant is at such a low ebb but there is a stark reality to the current level of dysfunction in their relationship.
The circumstances that impact upon Y are different to those of X. Y is closely bonded to the applicant and retains a close emotional attachment to the respondent and X.
The orders sought by the respondent is that Y’s care be shared equally between the parties. Such an outcome is resisted by the applicant by her proposal that the current significant time be maintained until the beginning of 2024 whereupon she will relocate with Y to New Zealand but that Y will spend time with the respondent in Australia during school holidays and on other occasions that the respondent may attend New Zealand.
If the application for relocation is unsuccessful, then it is likely there will be minimal impact upon Y. There may be some issue that arises, given that the respondent seeks equal time and the applicant seeks that Y spend time with the respondent each alternate weekend from the conclusion of school on Friday to 5.00 pm on Sunday, and presumably for one half of each school holiday period.
There are a number of levels that need to be considered taking into account the differing proposals of the parties.
If the applicant is able to relocate with Y to New Zealand, then her time with the respondent will be significantly reduced.
Ms O considered that this would represent a substantial change for Y at her stage in life. Whilst it is likely that a good relationship could be maintained by Y returning to Australia during school holidays, the consideration is whether there would still be a meaningful relationship.
A meaningful relationship carries with it the idea of a relationship of substance, importance and involvement. What currently exists between the respondent and Y is an involved relationship and one of substance. The relationship that Y would have with the respondent if she lived in New Zealand, would be adversely impacted by the tyranny of distance and would no longer have the important level of connection.
If the applicant is unsuccessful with her application to relocate, then the respondent seeks equal time. In accordance with the 2019 final orders, the current arrangement provides for Y to spend substantial time with the respondent but it does not extend to equal time.
I consider that a move to equal time would be adverse to the child’s best interests and would be marred by enmity and ongoing conflict.
In the alternative, should the applicant be unsuccessful in her application for relocation, she seeks for orders that Y spend time with the respondent each alternate weekend from Friday night to Sunday night and half school holidays.
That would be less than the current arrangements and, whilst not ideal, is unlikely to significantly impact upon the level of relationship between the child and the respondent, particularly if the current time spending arrangements are impracticable by reason of distance and the lack of transport available to the respondent thereby inhibiting her ability to engage in the child’s education wherever that might ultimately be if not F School.
The practical difficulties and expense of the children spending time with each of the parties
If permitted to relocate, the applicant considers that she would be able to fund Y returning to Australia for one week in each of the short school holiday periods and for three weeks in each Christmas school holiday period together with such other occasions as may be agreed between the parties (particularly if the applicant were able to travel to New Zealand).
The ability of the applicant to fund her proposal for air travel between New Zealand and Australia is only viable if she has secure employment.
It is by no means certain that even if the applicant secures the employment that is apparently on offer, her income will be sufficient to enable her to find accommodation and cover the exigencies of life for herself and Y together with a significant component of expense relating to proposed air travel.
The circumstances of the applicant in New Zealand are uncertain, however I accept there is likely to be some short-term assistance provided by the applicant’s family and possibly by the biological father of Y.
The proposal of the respondent is also compromised by her financial circumstances given that if Y does not attend F School then she will have difficulty in facilitating the child’s attendance at a different high school given that she does not have ready access to a motor vehicle.
Advantages of relocation
If permitted to relocate, the applicant will have the advantage of more secure employment and the ongoing support of her extended family and Y’s biological father.
Y enjoyed the enhanced relationship with the applicant’s family and there is no reason to suggest that the experience in New Zealand would be other than of benefit to Y.
Disadvantages of relocation
The significant disadvantage would be the diminution of the relationship between Y, the respondent and X. I am satisfied that at her current age, the relationship that Y has with the respondent would be something less than meaningful if relocation was permitted.
Unfortunately, there is scant evidence as to the full impact on Y of the diminution of the relationship. It might be that she would be sad and initially upset but it is difficult to speculate on the extent of any adverse impact upon the child in the mid to long term.
There would be a disadvantage to the applicant in that she would be denied the comfort and support of her extended family in New Zealand, her ability to take up her current job offer, although that aspect must be tempered by the applicant’s proposal that she relocate at the beginning of 2024.
It is also a concern that there is some uncertainty as to whether the applicant would have the financial ability and support to facilitate her proposal that Y return to Australia four times a year.
Parental responsibility
The parties are agreed that the respondent should retain sole parental responsibility for X.
The parties are not agreed as to the future parental responsibility for Y. The applicant contends that she should have sole parental responsibility whereas the respondent seeks equal shared parental responsibility.
The determination of parental responsibility for Y is to be informed by a consideration of what is in the child’s best interests.
The parties have a deteriorating relationship. There is mistrust conflict and at present, whilst there is some ability to communicate, it is poor.
I bring to account that the applicant has recognised that an ongoing relationship between Y and the respondent is in the child’s best interest but it is unlikely that the parties will be able to do more than facilitate, what might be considered as, the bare minimum that would enable whatever orders are put in place to be given effect.
The evidence supports a finding that the applicant should retain sole parental responsibility for the child’s health and all other aspects of Y’s life save and except for education.
By the applicant taking up accommodation in J Town, knowing that it would create a logistical difficulty for Y to remain in touch with the respondent and X, the applicant has demonstrated a lack of insight at best or a deliberate attempt to undermine the respondent’s relationship with Y at worst.
I consider that the orders should reflect an obligation on the parties to reach agreement in respect of the future education arrangements for Y and that neither party should be in a position to impose a unilateral decision on where Y should attend school once she completes year 6 at her current primary school.
In those circumstances, and in the absence of an order for equal shared parental responsibility, I am not obliged to consider whether there should be equal time or in the alternative significant and substantial time other than if such an outcome is to be considered in the best interests of the child.
Conclusion
There is no uncertainty as to the future care arrangements for X. The respondent should retain sole parental responsibility and there should be no order that requires X to spend time with the applicant other than if he so wishes in which case, the respondent will be obliged to facilitate any such request.
The position is more complicated in respect of Y. It is important that orders are made which reflect the intention of each of the parties that Y should maintain a meaningful relationship with both parties but in particular, the respondent. That is important at Y’s current age however, there will be a point reached in the next few years when it is reasonable to find on the evidence, that the relationship Y has with the respondent will be sufficiently embedded such that a consideration of a relocation to New Zealand, can be considered.
I am not satisfied that there is evidence that would support a finding that equal time would be in Y’s best interests. It is likely that the parties will be separated by significant distance and given the financial circumstances of each of the parties and the lack of reliable transport available to the respondent, equal time is not likely to be practicable. In any event, Ms O recognised that Y was adversely affected by the ongoing conflict between the parties and it is reasonable to find that an order for equal time would only exacerbate the inability of the parties to reach consensus and agreement.
Ms O considers that five nights a fortnight and half school holidays taken as a block would be in Y’s best interests and would reduce the likely conflict arising out of the multiple transitions of the child between the parties each fortnight.
There is no issue as between the parties in respect of Y attending her current school in 2023. The issue arises in 2024 when the applicant seeks to relocate to New Zealand.
I bring to account the personal circumstances of the applicant noting that she has family in New Zealand, that there is likely to be an enhanced employment opportunity available to her and the added advantage of the increasing involvement of Y’s biological father.
The tension therefore, is as between the advantage to the applicant of relocation and therefore being able to better support Y, as against the potential for a diminution in the meaningful relationship and close emotional attachment that Y currently has to the respondent and X.
I consider that in January 2024, Y will still be too young to easily deal with the upset and distress likely to be occasioned by a move to New Zealand. I bring to account the concerns expressed by Ms O as to the child’s emotional wellbeing and am concerned that there should be more time available to Y and the respondent to cement their relationship before consideration should be given to a relocation to New Zealand.
I propose that the applicant should be permitted to relocate Y to New Zealand after a period of two years and subject to a consideration of Y’s wishes at that time.
I propose to put in place orders that provide for Y to spend five nights a fortnight and half school holidays with the respondent until 2025 whereupon the parties will consider Y’s wishes and subject to any application, the applicant will be permitted to relocate Y to New Zealand.
In any event, and up until any relocation in 2025, there should be no impediment to the applicant being able to take Y to New Zealand during school holiday periods when the child would ordinarily be in her care.
As considered, no evidence was presented which would assist me in determining where Y should go to school in 2025 in Australia and beyond and as such, it will be a matter for the parties to determine given that any decision as to the child’s schooling will need to be by agreement of the parties.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 10 November 2022
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