Raburn and Gabelman

[2020] FCCA 258

FEDERAL CIRCUIT COURT OF AUSTRALIA

RABURN & GABELMAN [2020] FCCA 258

Catchwords:
FAMILY LAW – Parenting – interim hearing – relocation – 21 month old child – where the mother seeks to relocate to Canberra with the child – where the mother is presently on a bridging visa – where the mother has obtained sponsored employment in Canberra to fulfil visa requirements – equal shared parental responsibility agreed between the parties – where the father seeks for the child to remain in Sydney and spend time with him on each alternative weekend – whether the child’s overnight time with the father should increase.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 64B, 61DA, 65DAA, 69ZL

Cases cited:

Morgan v Miles (2007) 38 Fam LR 275; [2007] FamCA 1230

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Applicant: MR RABURN

Respondent: MS GABELMAN

File Number: SYC 181 of 2019

Judgment of: Judge Monahan

Hearing date: 6 February 2020

Date of Last Submission: 6 February 2020

Delivered at: Sydney

Delivered on: 11 February 2020

REPRESENTATION

Solicitors for the Applicant: Mr Agbugba of UA Law

Council for the Respondent: Mr P Cook

Solicitors for the Respondent: Helen Cook Solicitors

Solicitors for the Independent Child’s Lawyer: Ms Newland of JLM Family Lawyers

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER, THAT: 

1. All previous parenting orders be discharged with the exception of paragraph 5 of the orders made on 20 March 2019.

2. The Applicant father (“the father”) and Respondent mother (“the mother”) have equal shared parental responsibility for X born in 2018 (“the child”).

3. The child live with the mother.

4. The child spend time with the father as agreed in writing and failing agreement:

   (a)in the event the child is living in Canberra, pursuant to paragraph 8 herein; and

   (b)in the event the child is living in Sydney, pursuant to paragraph 9 herein.

5. The mother be permitted to relocate with the child to Canberra, conditional upon the following:

   (a)she cause the franchise owner of B Pty Ltd at Canberra (“the Canberra business”) Mr C to execute an affidavit confirming the offer by him, and acceptance by the mother, of an employment contract with the Canberra business, and attaching a copy of said employment agreement to his affidavit (“Mr C Affidavit”); and

   (b)she file and serve Mr C Affidavit.

6. Within fourteen (14) days of the mother relocating with the child to Canberra in accordance with paragraph 5 herein (but not otherwise) she cause an application for a Sub class 494 skilled employer sponsored regional (provisional) visa to be lodged with the Australian Department of Home Affairs (“the visa application”).

7. Within twenty one (21) days of the mother relocating with the child to Canberra in accordance with paragraph 5 herein (but not otherwise) the mother make, file and serve a further affidavit which outlines the following:

   (a)confirmation that the mother has obtained and commenced employment with the Canberra business; and

   (b)confirmation that the mother has filed the visa application (with a copy of the visa application to be annexed to her affidavit);

   (c)and in the event that the mother fails to comply with this paragraph the Father and/or the Independent Children’s Lawyer have liberty to apply.  

8. In the event the child relocates to Canberra in accordance with paragraph 5 herein the child spend time with the father as follows:

   (a)Commencing on the first Friday not less than seven (7) days from the date the mother relocates to Canberra (“the relocation date”) and every 4th weekend thereafter, the child spend time with the father in Sydney from 5.00pm Friday until 12 noon Sunday with changeovers to occur at the father’s residence; and

   (b)Commencing on the first Friday not less than twenty one (21) days from the relocation date, and every 4th weekend thereafter, the child spend time with the father in Canberra from 5.00pm Friday until 12 noon Sunday with changeovers to occur at the child’s day care centre (when applicable) or otherwise at the mother’s residence.

9. In the event the mother ceases employment with the Canberra business: 

   (a)The mother and child may only remain in Canberra for a further 42 days for the purposes of the mother obtaining new employment which meets the requirements of the visa application; and

   (b)In the event the mother fails to obtain new employment pursuant to paragraph 9(a) herein the mother is to cause the child’s residence to be returned to Sydney. 

10. In the event the child resides in Sydney, the child spend time with the father as follows:

    (a)Until 9 March 2020, in accordance with the current cycle;

    (i)each alternate weekend from 5.00pm Saturday to 12 noon on Sunday;

    (ii)each alternate Saturday from 5.00pm to 8.00pm; and

    (iii)each Wednesday from 5.30pm to 7.30pm.

    (b)Commencing 10 March 2020:

    (i)each Wednesday evening from 5.00pm to 7.30pm; and

    (ii)each alternate weekend from 5.00pm Friday to 12noon Sunday

    with changeovers to occur at the child’s dare care centre (when applicable) or otherwise at the mother’s residence at the commencement of all times and the father’s residence at the conclusion of all times.

11. In the event the child is not otherwise spending time with the father on her birthday in accordance with these Orders, the child spend time with the father from 10.00am to 3.00pm and for the avoidance of doubt such time would occur in Sydney if the child is residing in Sydney or in Canberra if the child is residing in Canberra. 

12. The child have Skype or Facetime with the father as agreed in writing and failing agreement each Tuesday and Thursday between 6.00pm and 6.30pm for an age appropriate length of time with the mother using her best endeavours to encourage the child to communicate with the father using this technology. 

13. The father and the mother communicate in relation to matters involving the child’s welfare by way of text message and that both provide to the other, their current residential address and mobile phone number at all times.

14. The mother provide to the father full details of any child care facilities that she proposes the child may be enrolled into and prior to that enrolment allow the father to contact those facilities and make any relevant enquiries.

15. The father and mother be authorised to attend any events usually open to parents at any child care facility that the child may attend and receive information that is usually provided to parents.

16. The father and mother advise the other of the following:

    (a)when the child requires urgent medical assistance;

    (b)if the child is hospitalised; and

    (c)if the child attends upon any specialist medical practitioner while in their care.

17. Pursuant to paragraph 16 herein, the father and mother do all acts and things to ensure that the father is provided access to any medical information in relation to the child.

18. Each party be and is hereby restrained from denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so.

19. Each party be and is hereby restrained from the discussing the details of these proceedings, or any matters arising from these proceedings, with the child, save the following exceptions:

    (a)Advising the child of the child’s need to attend any Court related appointments; and

    (b)Advising the child about the next occasion that the child is going into care of, or communicate with, the other parent, in accordance with Court orders.

AND THE COURT FURTHER ORDERS THAT:

1. The matter remains listed on 6 May 2020 at 9.30am in respect of the Contravention Application and 9 March 2021 at 10.00am for directions (“the directions hearings”).

AND THE COURT NOTES THAT:

(A)These Orders were made following the interim hearing on 6 February 2020.

(B)An order for the preparation of a Family Report was made in this matter on the last Court occasion on 6 February 2020.

(C)The child remains on the Airport Watch list pursuant to paragraph 5 of the Interim Orders made on 20 March 2019.

(D)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 181 of 2019

MR RABURN

Applicant

And

MS GABELMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These short form reasons are being delivered pursuant to section 69ZL of the Family Law Act 1975 (“the Act”). They are also provided to assist the parties to understand the Orders that the Court has made in this matter.

2. The Court is asked to decide certain interim parenting matters relevant to the dispute between MR RABURN (“the father”) and MS GABELMAN (“the mother”). The relevant child of their relationship is X born in 2018 (“X” or “the child”).

3. The question or issue requiring determination in this decision is whether the Court should permit the mother to relocate with the child to Canberra in order for her to take up an employment offer that may enable her to obtain a visa to remain living in Australia. The mother is presently on a ‘bridging visa’ and the father is unable to sponsor her for a visa. Depending on whether that permission is given, there is also a dispute as to whether the child’s time with the father should increase.

4. I note that the parties were legally represented at the interim hearing; the father by his solicitor, Mr Agbugba and the mother by Mr Cook of counsel. There is an Independent Children’s Lawyer (“ICL”) appointed in this matter, and Ms Newland appeared in that capacity at the interim hearing. 

Background

Relationship History

1. The father was born in Country D in 1990 and is currently aged 29 years of age. The mother was also born in Country D in 1988 and is currently aged 31 years of age.

2. The parties commenced their relationship in 2014 and registered their relationship with the Registry of Births, Deaths and Marriages in 2017. The parties separated in October 2017. The child was born in 2018 and is presently aged 1 year and 9 months.  

3. The parties do not have any other children.

4. The mother was granted a bridging visa (A) in 2018. The child was granted a permanent residence visa by way of the father’s Australian Permanent Residency in 2019.

Procedural History

1. The father filed an Initiating Application on 15 January 2019 seeking interim and final parenting orders (later amended on 23 January 2020).

2. The mother filed her Response on 27 June 2019 (later amended on 17 December 2019.

3. The matter first came before me on 20 March 2019. On that day I made interim consent orders (referred to below) and ordered the parties to attend a Child Dispute Conference with a Family Consultant on 23 May 2019.

4. The matter returned on 13 June 2019 for directions, with the Court and the parties now having the benefit of the Child Dispute Memorandum. The Court also made an order to vary the interim orders made on 20 March 2019 (referred to below). At this stage the mother was yet to file her Response and as such I made directions for the mother to file and serve her Response material by no later than 4.00pm 27 June 2019. Subsequently the father’s costs were reserved fixed in the sum of $305.00. The matter was adjourned for directions on 15 October 2019.

5. On the 15 October 2019 I made an order for the appointment of an Independent Children’s Lawyer (“ICL”) and for the mother to amend her Response. The varied interim orders made on 13 June 2019 were further varied (referred to below). The matter was adjourned for directions on 17 December 2019 to ascertain the preliminary views of the ICL and to ascertain whether the mother still sought her relocation application.

6. On 17 December 2019 the Court was informed that the mother still sought her relocation and as such the matter was listed for interim hearing on 6 February 2020.

7. As stated, the interim hearing took place before me on 6 February 2020 (“the interim hearing”) following which the Court reserved its decision and made orders for the preparation of a family report. The Court also made orders for the Contravention Application filed by the father 31 December 2019 to be made returnable on 6 May 2020. The matter is also further listed for directions on 9 March 2021 in anticipation for the release of the family report. 

Agreement

1. The parties have previously agreed on interim parenting orders. The first occasion being 20 March 2019 as follows:

   1. That the Applicant Father and Respondent Mother have equal shared parental responsibilities.

   2. That the child, X, born in 2018 live with the Respondent Mother.

   3. That the child spend time with the Applicant Father by written agreement between  the parties, and if no agreement:

   a.the child spend time with the Applicant Father every Wednesday from 5.30pm to 7.30pm; and

   b.the child spend time with the Applicant Father each Saturday from 5.00pm to 8.00pm.

   4. That each party promptly advise the other if the child is injured or becomes ill, taken to a doctor or hospital or professional appointments including the child's medical report.

   5. That the child's name be listed on the International Airport watch list.

   6. To facilitate the orders above, any change over to take place at the Mother's residence with the Father picking up and dropping off the child from the Mother's driveway.

2. The matter returned for directions on 13 June 2019 and by consent the following interim orders were made:

   4. Paragraph 3(b) of the Orders made on 20 March 2019 be varied to:

   i. Commencing 15 June 2019, the child spend time with the Applicant Father each alternate Saturday from 5.00pm to 8.00pm; and

   ii. Each alternate weekend from 5.00pm Saturday to 12 noon Sunday.   

3. On the 15 October 2019 the matter returned for directions and the interim orders were further varied as follows:

   7. Paragraph 4 of Orders made 13 June 2019 be varied to:

   a. The child spend time with the father as agreed between the parties and, failing agreement:

   i. Commencing on 19 October 2019, each alternate weekend from 5pm Saturday[1] to 12 noon on Sunday;

   ii. alternate Saturday from 5pm to 8pm; and

   iii. each Wednesday from 5.30pm to 7.30pm.

Proposals

[1] Orders amended pursuant sub-rule 16.05(2)(g) of the Federal Circuit Court Rules (2001) on 20 December 2019.

Mother

1. The mother proposes that the Court permit her to relocate with the child in order for her to take up an employment opportunity in Canberra with a franchise of the B Pty Ltd chain, being a business operated by Mr C. Based on legal advice that she has received from her migration lawyers,[2] this employment would enable her to the Department of Home Affairs for a “Sub class 494 Skilled Employer Sponsored Regional (Provisional) Visa”. If granted, this visa would enable her to remain in Australia for up to five years and may allow her to become eligible to apply for permanent residence.

   [2] See the mother’s affidavit filed 17 December 2019, annexure “D”.

2. In the event that the child was living in Canberra, the mother proposes that the child spend time with the father on the first weekend of each month in Canberra from 12 noon Saturday until 4.00pm Sunday and on the third weekend of each month in Sydney from 12 noon Saturday until 1.00pm Sunday.

3. The precise orders sought by the mother were as per her interim orders sought in her Response filed on 17 December 2019 and are as follows:

   1. The mother and the father have equal shared parental responsibility for the child, X born in 2018.

   2. That the respondent mother and child X be permitted to relocate to the Australian Capital Territory (“ACT”).

   3. That the child X born in 2018 live with the respondent mother in the Australian Capital Territory (“ACT”).

   4. That the father spend time with the child on the first weekend of each month from 12.00pm on Saturday until 1.00pm on Sunday. With the mother to deliver and collect the child from the father’s residence in Sydney.

   5. That the father spend time with the child on the third weekend of each month from 12.00pm on Saturday until 1.00pm on Sunday. With the mother to deliver and collect the child from the father’s residence in Sydney.

   6. Christmas in odd numbered years: (2019);

   a. That the child spends time with the mother from 11am on 24^th December to 3pm on 26^th December.

   b. That the child spends time with the father from 11am on 31st December to 3pm on 2^nd of January.

   7. Christmas in even numbered years (2020);

   a. That the child spends time with the father from 11am on 24^th December to 3pm on 26^th until 3pm December.

   b. That the child spends time with the mother from 11am on 31^st December to 3pm on 2^nd January.  

   8. On the child’s birthday commencing 2020 the child spend time with the father from 9.00am to 3.00pm. The father to collect the child from the mother’s residence and deliver the child to the mother’s residence. Or such time as agreed between the parties.

   9. That the respondent father to pay to the respondent mother half of the care costs for the ACT day care centre in the sum of $160.00 per day or other such sim required by the child care centre.

4. I note that during oral submissions the mother ultimately aligned with the ICL’s proposal (discussed below).

Father

1. The father opposes the mother’s relocation with the child to Canberra. In addition, he proposes that the child’s time with him increase so that she spends two further two and a half hour periods with him mid-week, in addition to the time that the child already spends with him on weekends.

2. In the alternative, should the Court permit the child to relocate with the mother to Canberra, he proposes that the child spend alternate weekends with him from 5.00pm Friday to 5.00pm Sunday (being one weekend in Sydney and one weekend in Canberra).[3]

   [3] Although the father’s case outline makes no reference to where the relevant weekend time would occur, it was clear from the father’s submissions that the time would be in Sydney once a month and Canberra once a month.

3. The precise orders sought by the father were as follows:

   1. The Mother and Father have equal shared parental responsibility for the child.

   2. The child live with the mother.

   3. The child spend time with the Father:

   a. each alternate weekend from 5.00pm Saturday to 12 noon on Sunday;

   b. alternate Saturdays from 5.00pm on Saturday to 8.00pm; and

   c. each Tuesday and Thursday from 5.00pm to 7.30pm.

   In the alternative, in the event the mother relocates from Sydney NSW to Canberra ACT or another Australian State or overseas:

   1. The Mother and Father have equal shared parental responsibility for the child.

   2. The child live with the mother.

   3. The child spend time with the Father:

   a. each alternate weekend from 5.00pm Friday to 5.00pm Sunday; and

   b. other days during the week the mother shall want to spend time with the child by providing the father with 12 hours’ notice.

ICL

1. The ICL also proposes that the Court permit X to relocate with the mother in order for her to take up the relevant employment opportunity in order to apply for a 494 visa.

2. In the event that the child was living in Canberra, the ICL proposes that the child spend time with the father on the first weekend of each month in Canberra from 12 noon Saturday until 3.00pm Sunday and on the third weekend of each month in Sydney from 12 noon Saturday until 3.00pm Sunday.

3. The precise orders sought by the ICL are as follows:

   1. That the parents have equal shared parental responsibility for the child X born in 2018.

   2. That X live with her mother.

   3. That upon providing evidence of an employer sponsored position for the purposes of the mother obtaining a 494 Visa that X be permitted to relocate with the mother to Canberra ACTAs stated, the mother ultimately aligned with the ICL’s proposal.

   4. That X spend time with her father as follows:-

   a. Pursuant to Interim Orders made on 15 October 2019 until the mother has obtained a residence in Canberra ACT.

   b. Once the mother has relocated to Canberra ACT, on the first weekend of each month from 12noon Saturday to 3pm Sunday in Canberra and on the third weekend of each month from 12noon Saturday to 3pm Sunday in Sydney;

   c. On X’s birthday from 2pm to 6pm in Canberra should X be in the mother’s care on that day pursuant to these Orders.

   d. On Father’s Day from 10am to 3pm in Sydney should X be in the mother’s care on that day pursuant to these Orders.

   5. That changeover shall occur by way of the father collecting and delivering X from the mother’s residence on the first weekend of each month and by way of the mother delivering and collecting X from the father’s residence on the third weekend of each month

   6. That X have Skype or Facetime with the father each Tuesday and Thursday between 6pm and 6.30pm and on the child’s birthday from 6pm to 6.30pm and that the parents use their best endeavours to introduce X to this concept.

   7. That the parents communicate in relation to matters involving X’s welfare by way of text message and that both parents provide to the other, their current residential address and mobile phone number at all times.

   8. That the mother shall provide to the father any and all details of any child care facilities that she proposes X may be enrolled into prior to that enrolment to allow the father to contact those facilities and make any enquiries he may feel necessary.

   9. That the parents are hereby authorised to attend any events usually open to parents at any child care facility X may attend and receive and information that is usually provided to parents.

   10. That X remain on the Airport Watchlist pursuant to Order 5 of the Interim Orders made on 20 March 2019.

   11. That the parents will promptly advise the other should X require urgent medical assistance or if X is hospitalised or if X attends upon any specialist medical practitioner while in their care and this order hereby authorises both parents to access any medical information in relation to X.

   12. That a Family Report be prepared and this matter be adjourned to allow for the release of that report.

Evidence and Submissions

1. Both parties and the ICL asked the Court to read and consider various documents filed in these proceedings.

Mother

1. The mother relied on the following documents at the interim hearing:

   ·Her Amended Response filed on 17 December 2019; and 

   ·Her Affidavit filed and affirmed on 17 December 2019.

2. The mother tendered the following document:

   ·A copy of email correspondence between the mother and the prospective employer (Exhibit “1”).

Father

1. The father relied on the following documents at the interim hearing:

   ·His Amended Initiating Application filed on 23 January 2020;  

   ·His Affidavit affirmed on 20 January 2020 and filed on 23 January 2020; and

   ·His Notice of Risk fled on 15 January 2019.

2. The father tendered the following document:

   ·Assorted screenshots from the mother’s social media accounts (Exhibit “1”).

Child Dispute Conference Memorandum

1. The parties attended a Child Dispute Conference on 23 May 2019. This conference pre-dates the mother’s request to relocate to Canberra with the child.

2. I note that the recommendations under the heading ‘Future Directions’ indicate that in the absence of risk:

   “it seems important that [X] is able to enjoy spending frequent time with her father. Longer periods of time, including overnight time, could potentially be considered and introduced later, but this would require further assessment at such a time.”  

   I note that the parties agreed that X commence spending overnight time once a fortnight with the father in June 2019.

Legislative Requirements

1. All parenting proceedings are governed by the provisions of part VII of the Act.

2. Parenting orders are defined in section 64B of the Act, and deal with outcomes relevant to this decision: namely, the arrangements for who the child live with, the time and circumstances the child spending time with the parent that they do not primarily live with, and the allocation of parental responsibility, if appropriate.

3. Section 60CA of the Act makes it clear for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of the child in a parenting dispute depends on the particular circumstances in each case, as different circumstances require different outcomes. That all said, to determine the best interests of the child in this case, the Court is required to consider the statutory provisions in light of the available evidence, including, of course, the primary and secondary considerations in section 60CC of the Act.

4. The Act does not contain any presumption against a ‘relocation’ order and nor is there any presumption that favours the parent that the children have been primarily residing with. In other words, relocation cases are not a special category of parenting orders. What the Act does is provide the Court with a structured discretion to determine what order is appropriate in the circumstances of the case.

5. The impact of the 2006 amendments to the Act in relation to relocation cases was described in the following terms by Boland J (sitting as the Full Court) in the case of Morgan v Miles (2007) 38 Fam LR 275; [2007] FamCA 1230, at paragraphs 79 to 81:

   “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 careful [sic] 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.” ^[4]

[4] Ibid, pp 290-291.

1. The High Court’s opportunity to consider relocation post the 2006 amendments to the Act came in MRR v GR (2010) 240 CLR 461; [2010] HCA 4. Of course, that decision reviewed a relocation decision flowing from a final decision. Nevertheless, despite that factual difference, the comments of the High Court are useful. The High Court’s interpretation of the mechanics of Part VII does not change the triggering effect of s.65DAA if the presumption for equal shared parental responsibility arises pursuant to s.61DA. While s.61DA requires a consideration of s.60CC factors, it is clear that s.65DAA, and the issue of ‘reasonable practicability’, is not solely determined by a consideration of the s.60CC factors. Some of these factors may, of course, be relevant. The capacity of the parents to encourage a meaningful relationship between the child and the other parent would be one example. That said, there are a number of other factors that are not specified in s.60CC, such as opportunities for accommodation, employment and extended family support, which would arguably be relevant to issues of reasonable practicability. Consequently, these ‘reasonable practicability’ factors must be considered separately.

Discussion

Mother’s submissions

1. In this case, the mother argues that the best interests of X would be served by allowing the relocation because:

   a. The child remains with the person with whom she has a secure and established base;

   b. The Mother’s prospects of obtaining permanent residency are increased and thus the child’s prospects of a continuing relationship with both her parents is increased;

   c. The Mother’s proposal for time with the Father is quantitatively very similar to that of the Father and thus the child will continue to have the opportunity of a meaningful relationship with her Father.[5]

   [5] Mother’s case outline, paragraph 7 dated 30 January 2020.

2. The mother also asks the Court to consider the following circumstances:

   a. the child, X, is very young;

   b. the Mother has been the primary carer of the child;

   c. the child appears “to have a secure and established base with the mother”;

   d. The Father and Mother did not cohabitate and thus the Father has limited day to day experience caring for the child;

   e. The parties agree, on an interim basis, for there to be equal shared parental responsibility;

   f. The relocation to Canberra will allow the Mother to increase her prospects of obtaining permanent residency;

   g. The Mother proposes the Father spend alternate weekends with the child ( Sat noon-Sunday 4pm; and Sat noon to Sunday 1pm) which is longer than the Father seeks (alternate fortnights Sat 6pm to Sunday 4pm), though it’s acknowledged the Father seeks further short periods of time during the week;

   h. The Father’s proposal, if the Mother takes the job offer in the ACT and improves her prospects of obtaining permanent residence, is to remove the young child from her primary carer.[6]

   [6] Ibid paragraph 6.

Father’s submissions

1. The motivations for the Application by Mr Raburn was a desire to establish a regular and structured parenting plan for their child X.

2. The Mother started discussing a possible move to Canberra with the Child on 15/10/2019, after 10 months of proceedings and is seeking a relocation order. The mother had only formulated her proposal for the child’s relocation in reaction to frustrate the father’s desire and, further, interfere with his relationship with the child.

3. There was more than a casual or chronological coincidence between the mother’s proposal for relocation and the father’s request for spending time building relationship with the child.

4. The mother has unlimited employment opportunities in Sydney NSW. She has lived in Sydney NSW for over 3 years and she has family and friends support in Sydney NSW.

5. The mother applied for a Protection visa, and now tells the court that her Protection visa application is unlikely to be successful. The question is, if the mother had knowingly lied to the Department of Home Affairs, Immigration and Citizenship (The Department) by making a false claim that Australia owns her a Protection obligation, her credibility regrading being truthful, in this court is in question. 

6. The mother claims that she has been offered an employment opportunity in Canberra, yet she has not provided to this court a letter of offer of employment.

7. The mother claims that the said employer at Canberra will be sponsoring her for a visa. The immigration process requires a sponsor to have an approved sponsorship. The sponsor then can submit a nomination application which will be assessed by the Department and if the criteria are met, the Department will approve the nomination and if not, the Department will refuse the nomination. The basis of the reason provided by the mother to relocate is based on a hypothesis, and such circumstances, are insufficient for a permission to relocate where such relocation is not in the best interest of the child. The mother has not provided to the court her employer sponsorship approval and a nomination application, whether approved or in process, for her benefit.

8. The mother had worked for his current employer for over 2 years as a full-time employee. However, she has not disclosed why the current employer will not sponsor her.

9. The mother current employer is B Pty Ltd [sic] and the proposed employer at Canberra is B Pty Ltd, however, the mother claims that she is required to undergo a probation period. I believe that, her current experience with B Pty Ltd Sydney NSW will provide the relevant experience required with B Pty Ltd Canberra in place of a trial under a probation.

10. The relocation is not in the best interest of the child, on the grounds that it will make it difficult for the child to spend time with the father.

11. The father urges the Court to find that the mother’s reasons for a proposal for relocation lacks legitimate justification and reasonableness.

12. I submit, that no reasonable justification has been provided for permission to allow the mother to relocate the child, and ask that the relocation application be dismissed.[7]

[7] Father’s case outline, part F dated 30 January 2020.

ICL’s submissions

It is agreed between that the parents separated before the child was born and that the child has been in the mother’s primary care since birth. The parents agree that they will share parental responsibility and that the child will live with the mother.

The time the father spent with the child prior to the commencement of these proceedings is in dispute. Upon commencement of the proceedings and from March 2019 there have been a number of Interim Orders made by consent with the parents reaching agreement for the father to spend time with the child on a graduating basis, including limited overnight time, which in the Independent Children’s Lawyer’s view is appropriate given the child’s young age. It appears that the mother has facilitated interim time pursuant to the orders and there have been no issues raised by the mother that the child’s time with the father has been anything other than positive.

The mother’s evidence is that she is currently in Australia on a Bridging Visa and that she has obtained legal advice which recommends that her pathway to permanent residency in Australia is best achieved by her application for a 494 Visa which requires her to find employment with a sponsor in a regional area.

The mother’s evidence is that she has had an offer of employment with an employer who will sponsor her in Canberra ACT however this offer of employment appears to be open in circumstances where that employer “will have to fill position by February 2020” and needs a “commitment” from the mother to “start work prior to February 2020” (mother’s affidavit filed 17 December 2019 at Annexure B).

The Independent Children’s Lawyer’s view is that while the current interim arrangements for the child are appropriate and child focussed, there appears to be some urgency to the mother’s application before the Court to relocate to Canberra for Visa purposes.

The Family Consultant recommends that a Family Report be prepared in this matter (Child Dispute Memorandum dated 23 May 2019). Whilst such report would certainly be of assistance to the Court, the significant delays in obtaining such report are noted by the Independent Children’s Lawyer.

It is the Independent Children’s Lawyer’s submission that given there appears to be some urgency to the mother’s application, waiting for a Family Report to be prepared could possibly have an adverse impact on the mother being able to pursue her pathway to Australian Residency. The Independent Children’s Lawyer submits that any such delay would not be in the child’s best interests.

The Independent Children’s Lawyer’s view is that given the regular time the child has spent with the father since March 2019, it is likely that the child will continue to develop a meaningful relationship with the father should she spend time with the father on alternate weekends and it is likely, given the history of this matter since the commencement of these proceedings, that the mother will continue to facilitate such time.

On balance, it is the Independent Children’s Lawyer’s view that it is in the child’s best interest to be permitted to relocate with the mother to Canberra on an interim basis providing such relocation is for the purpose of the mother pursuing her pathway to becoming an Australian Resident.[8]

[8] Independent Children’s Lawyer case outline, paragraph 5 dated 3 February 2020.

Findings

1. Having considered the respective proposals and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and determines that the mother should be permitted to relocate to Canberra with X. The Court finds accordingly.

2. In circumstances where the mother has been the primary carer for X since birth, the Court recognises the benefits of maintaining a secure and established environment for X. A relocation to Canberra will increase the mother’s prospects of obtaining permanent residency and reduce the prospect of the mother being placed in immigration detention and/or deported.

3. The Court also recognises the importance of X maintaining a meaningful relationship with the father that would enable her to have substantial and significant time with him. The child has been spending regular time with the father (including overnight time) pursuant to interim orders. The Court is also of the view that such time should increase notwithstanding the mother’s proposed relocation. This is because there is a history of overnight time which the evidence suggests has transitioned well. Furthermore the child also has a history of day care. Given the significant change that the child will experience if the relocation is permitted, the Court sees advantages to the child in simultaneously increasing her time with the father rather than introducing a number of changes sequentially. 

Conclusion

1. The Court’s findings have now been stated. 

2. In summary the Court will make orders permitting the mother to relocate to Canberra with the child, conditional on the provision of her employment agreement and lodgement of relevant visa and further conditional on her maintaining such employment. There will be orders for the child to spend increased time with the father in Sydney and Canberra.

3. In terms of procedural directions, the matter will return to Court early in May this year in respect of the father’s outstanding contravention application unless the father files a Notice of Discontinuance. Furthermore, the matter remains listed next year in anticipation for the release of the family report and to allow the parties to attend a mediation.    

4. There will be Orders of the Court to reflect this decision. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date:  11 February 2020