FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rana & Macaulay (No 2) [2024] FedCFamC1F 82
File number(s): SYC 1198 of 2021 Judgment of: KARI J Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives – Where the mother wishes to relocate the child’s residence from Sydney to Country D – Where the parenting issues are resolved but for the question of the country of residence of the child –Mother’s application refused – The child is to remain living in Australia Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Goode & Goode (2006) FLC 93-286
Sayer v Radcliff (2012) 48 Fam LR 298
Ritchie & Ritchie (No 2) [2023] FedCFamC1F 877
Taylor and Barker (2007) FLC 93-345
Division: Division 1 First Instance Number of paragraphs: 118 Date of hearing: 23-27 October 2023, 27-28 November 2023 Place: Sydney Counsel for the Applicant: Dr Barnett SC Solicitor for the Applicant: Walter & Elliot Family Lawyers Counsel for the Respondent: Mr Ford Solicitor for the Respondent: Robertson Saxton Osborne ORDERS
SYC 1198 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RANA
Applicant
AND: MR MACAULAY
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.That the child X (“X”) born 2017 live in Australia with the father SAVE AND EXCEPT as provided for in paragraph 4
BY CONSENT IT IS ORDERED:
Parental Responsibility
2.That the parties shall have equal shared parental responsibility for X.
Time Spending with the Mother if the mother does not live in Australia
3.In the event that the mother lives in Country D:
(a)X shall spend time with the mother as follows:
(i)In every year, in Country D for a period of four (4) weeks during the Country D summer, at dates as agreed between the parties, and coinciding with X’s winter school holiday period, with the mother to nominate and pay for X’s return Economy class airfares.
(ii)In every even numbered year, in Country D for a period of four (4) weeks over the Christmas period (such period to commence after Christmas Day) as agreed between the parties in writing (and failing agreement from 3 January – 31 January).
(iii)In every odd numbered year, in Australia for a period of four (4) weeks over the Christmas period (such period to commence after Christmas Day) as agreed between the parties in writing (and failing agreement from 3 January – 31 January).
(iv)At any other time the mother travels to Australia, at all reasonable times as agreed between the parties in writing (and no less than half of the time that the mother is in Australia).
(v)To facilitate Orders 3(a)(i) – 3(a)(iv), the parties will ensure that X will not miss more than three (3) weeks in each school year.
(vi)At such further or other times as agreed between the parties in writing.
(b)For the first four periods of time that the mother spends with X pursuant to Orders 3(a)(i) – 3(a)(iv) herein, the period of four (4) weeks shall be broken up into two periods of two weeks where X spends a period of no less than 48 hours with the father, unless otherwise agreed.
(c)For the purposes of Orders 3(a)(i) and 3(a)(ii) herein, until such time that X turns 14 years old, the father shall accompany X to and from City C (or to a location mutually agreed to by the parties), or in the event the father cannot accompany X, another person as agreed between the parents shall accompany X to and from Country D.
(d)In the event the mother travels to Australia then she shall provide the father with four (4) weeks written notice of her intention to travel and the proposed date of her arrival and departure, and she shall be responsible for meeting the costs of her airfares and accommodation, and the father shall not unreasonably withhold his consent to the mother’s proposal.
(e)That upon X attaining the age of fourteen (14) years, the father may elect to travel with X to City C, Country D or alternatively he may elect to take X to the nominated airport in Sydney and ensure that X is placed on the aircraft for travel to Country D; and the mother shall ensure that she is at the nominated airport to collect X.
(f)That in the event the father does not travel to Country D with X pursuant to Order 3(e) above, the mother shall take X to the nominated airport in Country D at the conclusion of all visits and ensure that X is placed on the aircraft for travel to Sydney; and the father shall ensure that he is at the airport in Sydney to collect X.
Living arrangements for X if both parents reside in the same country
4.In the event that the mother lives in Australia, and/or the parties live in the same country:
(a)X shall live with the mother.
(b)X shall spend time with the father as follows:
(i)From the date of these Orders and continuing thereafter during school terms during school terms, on a fortnightly basis as follows:
A.In Week One, from the conclusion of school (or 3:00 pm if falling on a non-school day) on Friday until the commencement of school (or 9:00 am if not a school day) on Monday;
B.In Weeks One and Two, from the conclusion of school on Wednesday (or 3:00 pm if falling on a non-school day) until the commencement of school (or 9:00 am if falling on a non-school day) on Thursday; and
C.For one half of all school holiday periods or as agreed, and failing agreement for the first half in even numbered years and the second half in odd numbered years, subject to Orders 4(c) and 4(d)(i) below.
(c)In the event the mother and X live in Australia, the mother is permitted to travel with X to Country D as follows:
(i)Every odd numbered year, for a period of up to five (5) weeks during the NSW School Summer Holidays as agreed between 15 December and 26 January; and for a period of up to three (3) weeks during the NSW School Winter Holidays, if permitted by X’s school; and
(ii)Every even numbered year, for a period of four (4) weeks during the NSW School Summer Holidays as agreed between 26 December and 26 January; and for a period of up to four (4) weeks during the NSW School Winter Holidays, if permitted by X’s school.
(iii)Apart from the time that X is with the mother for the periods specified in Orders 4(c)(i) and 4(c)(ii) he is to be with the Father for the remainder of the school holiday periods.
(d)That X spend time with the parties on special occasions as follows:
(i)Subject to Order 4(c), at Christmas:
A.In odd numbered years with the mother in Country D in accordance with Order 4(c)(i) above; and
B.In even numbered years with the father in accordance with Order 4(c)(ii) above.
(ii)On Mother’s Day: If not otherwise spending time with the mother in accordance with these Orders, X shall spend time with the mother from 5:00 pm on the Saturday immediately prior to Mother’s Day until 5:00 pm on Mother’s Day.
(iii)On Father’s Day: If not otherwise spending time with the father in accordance with these Orders, X shall spend time with the father from 5:00 pm on the Saturday immediately prior to Father’s Day until 5:00 pm on Father’s Day.
(iv)Subject to Orders 4(c) and 4(d)(i), on X’s birthday:
A.In odd numbered years with the mother in Country D in accordance with Order 4(c)(i) above; and
B.In even numbered years with the father in accordance with Order 4(c)(ii) above.
(v)That for the purposes of changeover and unless otherwise agreed between the parties in writing, the father shall be responsible for collecting X from school or the mother’s residence (as applicable) at the commencement of his time and returning X to school or the mother’s residence at the conclusion of his time with X.
(vi)That for the purposes of meeting the costs of travel in accordance with Orders 4(c) and 4(d)(i), the following shall apply:
A.The mother shall pay the cost of her return Economy airfare to and from Country D; and
B.The father shall pay the cost of X’s return Economy airfare to and from Country D.
(vii)Orders 4(a) – 4(d) above apply until the mother relocates to Country D or in the event the parties are residing in the same country.
Other arrangements
5.That regardless of where X lives:
(a)The party with whom X is living shall cause X to communicate with the other party by telephone, Facetime, or video call no less than twice per week at such days and times as the parties shall agree, and failing agreement:
(i)If X is living in Sydney, between 7:00 am – 8:30 am (Sydney time) each Wednesday, and between 7:00 am – 9:00 am on Sunday (Sydney time);
(ii)If X is living in City C, between 5:00 pm – 7:30 pm (City C time) each Wednesday, and between 5:00 pm – 7:00 pm on Sunday (City C time); and
(iii)On special occasions including X’s birthday, the parent’s birthday, Father’s Day, Mother’s Day, Easter, and Christmas.
(b)That X spend time with the parties on special occasions as follows:
(i)Subject to Order 4(c) at Christmas:
A.In odd numbered years with the mother in Country D in accordance with Order 4(d)(i)(A) above; and
B.In even numbered years with the father in accordance with Order 4(d)(i)(B) above.
(c)That for the purposes of changeover and unless otherwise agreed between the parties in writing, the father shall be responsible for collecting X from school or the mother’s residence (as applicable) at the commencement of his time and returning X to school or the mother’s residence (as applicable) at the conclusion of his time with X.
International Travel for Holidays
6.The mother and the father are authorised to travel with X outside of the Commonwealth of Australia and Country D, provided such travel takes place when X is in their care in accordance with these Orders.
7.In the event that either party proposes to travel with X outside the Commonwealth of Australia and Country D, as soon as practicable, but not less than 28 days prior to the date of departure, the travelling party shall provide to the non-travelling party the following:
(a)a copy of X’s return air tickets;
(b)a copy of the itinerary;
(c)address or addresses where X will be staying whilst overseas; and
(d)a contact telephone number.
8.That each party shall within 7 days of a written request by the other party do all things necessary and sign all required documents (including any application for re issue of a relevant passport for X) to enable an Australian passport, British passport, and a Country D passport to be issued or re-issued in the name of X and the original, and any subsequent passport, shall be retained by the father if X lives in Australia, or by the mother if X lives in Country D.
9.That each party is prevented by injunction from interference with the travel plans of the other party. Interference includes actions such as withholding of a passport in contravention of these Orders, withholding access to X so as to cause them to miss flights, or other wilful disruption of the travel arrangements of the other party.
Other
10.That in the event either party changes their residential address or contact numbers they shall within 24 hours of such change occurring, inform the other party of those updated details in writing.
11.Both parties do all acts and things and sign all documents necessary to authorise any child care, pre-school, and school/s attended by X to provide to each party all particulars of X’s schooling, including but not limited to the provision of school reports, notices of the school, photographs, circulars sent to parents, notices of school excursions and any other activities of which X is a participant, including providing each parent with access to any online ‘App’ used by the school to share information about X.
12.Both parties shall do all acts and things and sign all documents necessary to authorise any medical practitioner, specialist, orthodontist, psychologist and/or any other health professional to communicate and provide information to the other party in relation to X’s health.
13.That each party shall:
(a)Notify the other parent as soon as possible of any serious injury or illness suffered by X whilst in the care of that party;
(b)Be at liberty to attend school functions to which parents are invited;
(c)Encourage, supervise and assist with and facilitate X’s homework and additional activities such as occupational health exercises when X is in their care.
(d)That in accordance with s 106A of the Family Law Act 1975 (Cth), if either party refuses or neglects to execute a document or instrument necessary to give effect to these Orders, the Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and documents in the names of the parties and do all acts and things necessary to give validity and operation to the deed or instrument.
NOTATIONS
A.“School holiday periods” are defined as commencing upon the conclusion of the last day that X is required to attend school in the school term, and conclude at the commencement of the first day of X’s new school term that X is required to attend.
B.The parties agree to seek and consider professional guidance about preparing X for the implementation of these Orders, and for the parties to be living in different countries.
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 Rana & Macaulay has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
These are parenting proceedings in relation to the parties’ child X, who at the time of trial was five years of age.
The central dispute between the parties is whether or not the mother is to be permitted to relocate X’s principal place of residence from Sydney, Australia to Country D.
It is a shame that these parents have been required to litigate X’s parenting arrangements, in circumstances where it appears that but for the question of any relocation of X to Country D, these parents would have been unlikely to require the assistance of the court. It would have undoubtedly been preferable for all involved, particularly X, if these parents could have come to a resolution without the assistance of the court.
X however is fortunate to have two high functioning parents that love him deeply and are able to provide for him and meet his needs in every sense. As a result, X’s parents are in a position to give him a strong foundation from which to meet his full potential. This is an aspirational foundation for any child, but particularly one who is the subject of parenting proceedings.
Unfortunately, however, the reality for X is also that, as a consequence of the dispute between his parents about the location in which he is to live, he will lose the proximate presence of one of his parents in his life. This is because it is the mother’s position that she plans to relocate to Country D with or without X.
Parenting cases of this nature are particularly burdensome. The court is acutely aware that the optimal outcome for X is unable to be achieved; that is having two parents living near each other and X seamlessly transitioning between the two in a cooperative parenting arrangement.
For the reasons that follow, X is to remain living in Australia with the father.
BACKGROUND
The parties agree certain relevant factual matters about their personal histories and the history of their relationship as follows:
(a)The father was born in 1965 in the UK. At the time of trial he was 58 years of age.
(b)The mother was born in 1971 in the UK. At the time of trial she was 52 years of age.
(c)The father has been married twice previously and he has two children from his second marriage; Ms F who at the time of trial was 18 years of age, and Ms G, who at the time of trial was 19 years of age. Both of the father’s adult children presently live between the father and their mother, Ms H and had previously been living in a shared care arrangement between their parents.
(d)The father lived in the UK for all of his formative years and completed all of his schooling there. The father’s extended family all live in the UK. The father moved to Australia from the UK with his eventual second wife (Ms H) in or about 1997/1998.
(e)The mother has largely lived in Country D for all of her formative years, and she completed all of her schooling there. The mother’s extended family predominantly live in Country D.
(f)The parties met when they were both working for the multinational firm J Company; the father as a professional and the mother on a contract basis as a professional.
(g)In approximately mid-2012 the parties commenced their relationship. At that time the father was living in Sydney, Australia and the mother was living in City C, Country D. The parties however both travelled frequently, and they would meet up together in various locations around the world.
(h)There is a dispute between the parties about when their formal cohabitation in Sydney began; the husband asserts it was in late 2012, whilst the wife asserts that it was in late 2013, with a less formal living arrangement together in Sydney from early 2013. It is not necessary for the court to make any findings about the actual date of cohabitation. All that is necessary to understand is that cohabitation was in Sydney, and despite their differences in opinions about what led to that decision, the parties have based their lives together in Sydney from no later than late 2013 and certainly for the duration of X’s life.
(i)The child, X, was born in 2017.
(j)X’s birth followed a number of unsuccessful pregnancies and unsuccessful in vitro fertilisation (IVF) treatments and he was ultimately conceived with the use of donor eggs with that procedure taking place in Country K.[1]
(k)Until X’s birth both of the parties travelled frequently and extensively for work purposes, and at times combining that work related travel with leisure.
(l)Following X’s birth the parties’ significant travel arrangements continued and included lengthy periods of time in Country D. However, the global covid pandemic and resultant travel restrictions meant that the parties undertook no international travel for the better part of the 2020 and the 2021 calendar years.
(m)The parties separated on 18 May 2020.
(n)The mother and X however have spent extended time together in Country D in the post separation period with the father’s consent as follows:
(i)From late 2021 until early 2022;[2]
(ii)In early 2022 for several weeks (this trip taking place following the death of the maternal grandfather); and[3]
(iii)For a little over 3 weeks in mid-2023.[4]
[1] Mother’s Affidavit filed 18 April 2023, paragraphs 33-34.
[2] Mother’s Affidavit filed 18 April 2023, paragraph 121.
[3] Mother’s Affidavit filed 18 April 2023, paragraphs 122-123.
[4] Mother’s Affidavit filed 12 October 2023, paragraph 11.
The mother asserts that at the time that she relocated to Australia, there was an agreement between the parties that they would move away from Sydney once the father’s children, Ms F and Ms G, were old enough for him to do so. The father’s position is that he says he made it clear to the mother was that he would not consider doing so before both of his daughters were at least 18 years of age, and that the mother appeared to have an expectation that they would ultimately move to live in Country D. The mother also asserts that at one stage there were discussions and an agreement reached that the parties would relocate to City M, as both the father and his former wife were originally from the United Kingdom and could both easily relocate there. Whilst important to the mother that the court understands these matters, it is not necessary for the court to make any findings. For present purposes all that is necessary to understand, and that to which I am satisfied, is that at the present moment the mother wishes to move to Country D and the father has no intention to do so. Whether that circumstance is capable or likely of future change for either party is unknown and it would be unwise for the court to speculate or proceed on any other basis.
THE LITIGATION
These proceedings were commenced by the mother when she filed her Application for Final Orders on 23 February 2021. By that application the mother sought final orders permitting her to relocate X’s principal place of residence to Country D.
The father filed a Response to Final Orders on 26 March 2021. By that document the father opposed the relocation of X to Country D.
To the parties’ mutual credit, and aside from disagreements they have had over X’s school holiday and travel arrangements, since their separation they have largely been able to agree X’s parenting arrangements without the intervention of the court. Those agreements have included agreements about X maintaining his primary care with the mother, and the father spending time with X, with that time gradually increasing in an age-appropriate manner to include regular time spending, school holidays and special occasions, together with agreement about X and the mother travelling to Country D. At the present, X’s regular time spending with the father (pursuant to orders made by consent on 6 March 2023) is five nights each fortnight on the basis that X is with the father overnight each Wednesday together with each alternate weekend from Friday afternoon until Monday morning.
Early in the proceedings and understanding that the central dispute between the parties was the mother’s desire to relocate X to Country D, the parties agreed that a family report was to be privately prepared by Dr N. That report was prepared (albeit with some delays caused by the pandemic) and is dated 10 February 2022. Dr N has also prepared an updated report dated 13 February 2023. I shall discuss the opinion of Dr N later in these reasons.
Following the release of Dr N’s first report, in about late March/early April 2022, the mother amended her Application for Final Orders to make it clear that she proposed to relocate herself to Country D with or without X.
Alongside the parenting litigation the parties have also been in dispute about their finances. Again, to the parties’ credit that dispute was able to be resolved with the court making orders at the request of the parties on 23 February 2023. In summary those orders provide for:
(a)The former matrimonial home at Suburb L to be sold within two calendar months of the final determination of the parenting proceedings;
(b)The wife to receive 40% of the net proceeds from the sale of that property and the husband the balance;
(c)The parties to otherwise retain their separate interests and entitlements to their separately held property.
So far as those orders are concerned, and for present purposes it is important to understand:
(a)From the time the parties separated in May 2020 until the father vacated the Suburb L property in early 2021, the family continued to reside together under the same roof.
(b)Since early 2021 the mother and X have remained living in the Suburb L property and the father has resided in nearby rental accommodation.
(c)The property retained by the mother includes a home that she owns in City C, Country D, and it is this home that she presently plans to live in with X if she is permitted to relocate with him.
PROPOSALS OF THE PARTIES
In their preparations for the trial the parties had each set out detailed proposed orders based on the two alternate scenarios of either X relocating to Country D with the mother, or X remaining in Sydney with the father. The mother’s proposal is set out in her Further Amended Initiating Application filed 12 October 2023. The father’s proposal is set out in his Case Outline filed 19 October 2023.
While there were differences between the parties about the timing, location and duration of time spending the other parent was to have with X, they essentially agreed that X’s non‑residential parent was to have block time spending with X alternating between the long Australian Summer school holidays in December/January of each year, being the short Winter Country D school holidays, and the short mid-year Australian school holidays, being the longer Summer Country D school holidays.
During the trial, and as a result of the court’s prompting, the parties were able to have negotiations with the assistance of their counsel and they were able to significantly narrow the ambit of their dispute to a singular question of whether X live in Australia or Country D with either the father or the mother respectively. The parties were otherwise able to reach an agreement about X’s parenting arrangements on either of his living scenarios or indeed if the parties were to live in the same location. That agreement was reduced to writing and signed by each of the parties and received as exhibit “J1”. That document was in the form of a Draft Minute of proposed orders for the court to consider making dependant on the outcome of the principal country of residence question (“the Draft Minute”). Regard has been had to that document and the competing proposals of the parties contained therein; which operate in mirror depending on the country in which X resides. Those arrangements in essence provide for X to spend time with the non-residential parent in their country of residence each year for a period of four weeks over the mid-year school holidays, and otherwise for a period of four weeks over the Christmas school holidays on an alternate basis between Australia and Country D, together with additional time spending if that parent chooses to travel to the country X lives in.
The Draft Minute also sets out the agreed position of the parties as to X’s living arrangements if the parties were to reside in the same country. In this instance there would be a continuation of the current arrangement that provides for X to live with the mother and spend time with the father in the existing five night per fortnight regime of time spending. The parties otherwise additionally agree that there be a sharing of school holidays. The Draft Minute also makes provision for the mother and X to travel to Country D for extended periods each year.
The parties are to be commended for being able to reach these agreements; particularly as they were able to do so in the background of the trial proceeding (with all its concomitant uncertainties stressors) and those negotiations occurring outside of sitting hours.
THE LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests. The legislative pathway to be adopted in a parenting case has been identified by the Full Court in Goode & Goode (2006) FLC 93-286.
In making any parenting order the court must have regard to the aims of the legislation set out in s 60B(1) of the Act, which provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underpinning the aims of the legislation are contained in s 60B(2) of the Act which provides:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining what is in a child’s best interest, the court is to have regard various considerations set out in s 60CC of the Act. Those considerations are separated into primary considerations and additional considerations. The primary considerations are ones which the court is required to give greater consideration too. The considerations set out in s 60CC of the Act are as follows:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(Note omitted)
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted if there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence. [5]
[5] Family Law Act 1975 (Cth), s 61DA(2).
As identified, the legislative pathway mandates that the court determine the question of parental responsibility as a precursor to determining those orders that are in X’s best interests. Here, however, the parties mutually agree that they are to share parental responsibility for X. Whilst I accept that such an order requires the court to consider equal time and/or substantial and significant time spending, here where there is no dispute as to what those arrangements are to be once the question of X’s country of residence is determined, the only question to be determined by the court is in which country and with whom X is to live. With that in mind the court is simply required to make orders that are in X’s best interests with regard to those factors prescribed by s 60CC of the Act. I therefore propose to consider X’s parenting arrangements within that context.
Whilst I am cognisant of the fact that these proceedings concern the possible relocation of X’s principal place of residence, the authorities are clear that the question of relocation is not to be dealt with as a discrete or separate issue. Rather, the correct approach is to assess the competing proposals of the parties (Sayer v Radcliff (2012) 48 Fam LR 298 at [48]), and it is within that context that the moving party’s proposal is considered as “just one of the proposals for the child’s future living arrangements” (Taylor and Barker (2007) FLC 93-345).
Moreover, as recently concisely discussed by Justice Hogan in Ritchie & Ritchie (No 2) [2023] FedCFamC1F 877:
26.In determining the issue of a child’s relocation, a parent’s right to freedom of movement is just one of the factors to be weighed; this and all of the other relevant factors must be taken into account in deciding what parenting orders are in X’s best interests (KB and TC (2005) FLC 93-224 at [72]) such that the determination of those parenting orders which are in X’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal. Whilst any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live, that right must defer to the expressed paramount consideration – the welfare of a child – if the same was to be adversely affected by a movement of a parent (See, for example: U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed).
(Footnoted citations inserted)
THE EVIDENCE
The two family reports of Dr N earlier identified are dated 10 February 2022 (“the first report”) and 13 February 2023 (“the second report”) and they were before the court.
The father otherwise relied on the following material:
(a)His Outline of Case filed 19 October 2023;
(b)His Further Amended Response filed 13 October 2023;
(c)His trial affidavit filed 18 April 2023 together with his updated affidavit filed 12 October 2023;
(d)The affidavit of his daughter Ms G filed 18 April 2023; and
(e)The affidavit of his former wife Ms H filed 16 October 2023.
The mother otherwise relied on the following material:
(a)Her Outline of Case filed 20 October 2023;
(b)Her Further Amended Initiating Application filed 12 October 2023;
(c)Her trial affidavit filed 18 April 2023, together with her updated affidavit filed 12 October 2023 and a further affidavit filed 25 September 2023;
(d)Her Notice of Child Abuse, Family Violence or Risk filed 23 February 2021;
(e)The affidavit of her brother, the maternal uncle, Mr O filed 17 April 2023;
(f)The affidavit of her therapist Ms B dated 12 October 2023;
(g)The affidavit of her friend who resides in Country D, Ms Q filed 12 October 2023.
In addition, the court had the benefit of a single expert report prepared by Dr R, a Consultant Child, Family and Adult Psychiatrist who had prepared a report in September 2023 in relation to the mother. This report is annexed to the affidavit of Dr R filed on 18 September 2023.
During the trial the court also received into evidence three recently prepared reports from X’s treating practitioners as follows:
(a)A report prepared by a Developmental Paediatrician, Dr S, dated September 2023 (exhibit “F3”);
(b)A report prepared by a Clinical Audiologist/Clinical Educator, Mr T dated November 2023 (exhibit “M7”); and
(c)A report prepared by a Speech Pathologist Ms P dated November 2023 (exhibit “M8”).
The reports from X’s recent assessments by his treating practitioners were received without challenge and without the need for any of those experts to be called to give evidence. From those reports I find that X is developing healthily and within normal limits. I have come to this conclusion taking into account each of the reports, and in particular having accepted the following:
(a)X presented to Dr S with concerns having been raised (predominately by the mother) as to 5 issues identified as:
1. Behaviours suggestive of selective mutism noted in social encounters
2. Teacher has noted fine motor difficulties with handwriting
3. Parent has noted difficulties with word pronunciation
4. Social communication difficulties and repetitive restrictive behaviours have been reported based on parent observation
5. Separated parents, shared legal guardianship, different parenting strategies between both homes.[6]
(b)X commenced kindergarten in the 2023 year and he has settled well at school participating in a range of extra-curricular activities including sport and performing arts. In a general sense X is progressing well at school, however concerns have been raised by the kindergarten teachers in relation to X’s “fine motor skills” and “social skills with his peers” (however the information and observations upon which that concern is based is not known).[7]
(c)There was nothing in Dr S’s physical examination of X, or the self-reports of each of the parents and/or other information provided to Dr S, that led Dr S to make any formal diagnosis.
(d)Dr S however noted that each of the parents reported different behavioural patterns shown by X; the mother expressing concerns about certain behavioural patterns, whereas the father identified that he does not experience the same or any significant behavioural concerns regarding X (save and except what might be described as both parents identifying X to be a fussy eater), and the father otherwise considering that X fits within normal childhood boundaries.
(e)Whilst the mother raised the possibility of Autism Spectrum Disorder, Dr S did not consider that more formal investigations in that regard were warranted. Instead, Dr S considered it appropriate to obtain “baseline information regarding [X’s] current abilities, implement some strategies and then revisit if there is a need to further pursue a more detailed assessment”.[8]
(f)The parents appear to have been referred by Dr S to two separate professionals. Firstly, a “child psychologist / behavioural therapist, to explore parenting behaviours across both homes as well as to explore the difficulties with social skills noted in new environments”, with Dr S providing what is described as a “generic referral” in that regard.[9] Secondly, a dietician “regarding food intake and helping to advise regarding introducing new foods”.[10]
(g)X was referred to an audiologist by Dr S for an assessment in relation to “sensory concerns”. X’s audiological assessment revealed that his “hearing thresholds” are within the “normal limits”, although he has “a mild hearing loss” in the left ear. Despite the same, there are no significant concerns that have been raised as a consequence.[11]
(h)X was also referred to a Speech Pathologist by Dr S. During his speech pathology assessment X’s “behaviour was not a concern”.[12] X’s language skills were assessed to be in the “average range”[13] and no follow up testing was recommended. X was assessed to have “age-appropriate speech sound skills”,[14] “some strong prosocial behaviours” but requiring “support and encouragement to use others that are appropriate for his age and stage of development”.[15] X was assessed to have “typical and atypical [speech] that is not consistent and is highly variable across communication contexts”,[16] which was considered to require further investigation and weekly speech pathology. The speech pathologist also “strongly recommended that the referral to psychology services occur to further investigate [X’s] selective use of language [as reported by the mother] in social situations”.[17]
(i)X was also referred for an Occupational therapy assessment in relation to his fine motor skills. It is apparent from the Speech Pathology Report that X is attending upon an occupational therapist weekly to “develop his gross motor and fine motor skills”.[18]
[6] Exhibit “F3”.
[7] Exhibit “F3”.
[8] Exhibit “F3”.
[9] Exhibit “F3”.
[10] Exhibit “F3”.
[11] Exhibit “M7”.
[12] Exhibit “M8”, p.1.
[13] Exhibit “M8”, p.2.
[14] Exhibit “M8”, p.3.
[15] Exhibit “M8”, p.4.
[16] Exhibit “M8”, p.4.
[17] Exhibit “M8”, p.5.
[18] Exhibit “M8”, p.1.
During the trial hearing, the court heard oral evidence from all of the lay witnesses excluding the father’s former wife, Ms H, whose evidence was received without challenge.
In addition, the court heard oral evidence from the expert witnesses Dr N and Dr R.
I do not propose to delve into the individual detail of each witness’ evidence. Rather I propose to discuss those relevant portions of their evidence in the reasons that follow. Regard, however, has been had to all of the evidence presented.
Broadly speaking, I am satisfied that each witness gave open and honest evidence from their respective perspective. I, however, equally accept that perspectives and perceptions may differ. This means that whilst I am satisfied as to the general credit of each of the parties, I am equally not prepared to slavishly accept everything that they have each presented without any interrogation.
The opinion of Dr N
When the first report was prepared by Dr N:
(a)X was over three years of age at the time of the observations. At that time he was not capable of reliably expressing his views and/or of having weight attached to his views. Accordingly, there were only observed interactions between X and each of his parents.
(b)X was about to commence spending overnight time with the father, and the mother reported to Dr N that she was unsure how X would manage this as they were co-sleeping together and he was expressing an unwillingness to her of sleeping at the father’s home.[19] By inference however, I am satisfied that this apprehension of the mother was unfounded in circumstances where X steadily and relatively quickly moved to spending five nights a fortnight with the father. That this smooth transition occurred is to the credit of both parents as it speaks to their ability to not only meet X’s needs, but also to supporting X and making him feel comfortable with the changes he faced. This is something that bodes well for the inevitable future changes that X faces.
[19] Report of Dr N dated 10 February 2022, paragraphs 24-25.
(c)Whilst the parties were on the cusp of commencing overnight time spending between X and the father, the father was seeing X for at least an hour each day by agreement, together with the certain time spending arrangements that the parties had implemented.
(d)Both of the maternal grandparents were alive, whereas since that time the maternal grandfather has deceased.
(e)There were no observed interactions between X and his sisters.
(f)The mother at that stage was not proposing to move to Country D without X if she was unsuccessful in her application to relocate with X.[20] There were accordingly three separate proposals brought to account by Dr N; firstly the mother’s proposal that she relocate with X to Country D, secondly the father’s proposal that parties continue to reside in Sydney, and thirdly (although not an option promoted by the father), that both parties and X relocate to Country D.
(g)Dr N expressed views (at [136]-[143]) which can be distilled to the following principal recommendations:
(i)That X continue to live in the mother’s primary care;
(ii)That X’s time with the father gradually increase;
(iii)That the mother continue to reside in Sydney;
(iv)That if a relocation was to be permitted then the same be delayed until “[X] is much older and has had the opportunity to build a sound foundation of spending time with each parent”.[21]
[20] Report of Dr N dated 10 February 2022, paragraph 26.
[21] Report of Dr N dated 10 February 2022, paragraph 140.
When the second report was prepared by Dr N a year later:
(a)X was over four years old at the time of the observations. He continued to be too young for his views to be given any weight and again there was no separate interview of X, which was compounded by X finding it difficult to separate from his parents during the assessment interviews.
(b)By that stage the mother’s position had crystallised further such that she had committed to relocating to Country D with or without X.
(c)In addition to the observed interactions between X and each of his parents, there were also observed interactions between X and his sisters and the father, together with separate interviews with each Ms F and Ms G.
(d)Dr N did not ultimately make a recommendation as to which of the parties’ competing proposals for X she favoured. She did however clearly express the view (which I accept) that:
69.… While [Ms Rana] has been the primary care giver and is the more tested option as the parent, both parties have a strong commitment to [X] and they each have a highly satisfactory capacity to meet his needs.
During the course of both assessments X was observed to interact comfortably, affectionately and appropriately with each of his parents. Indeed, the positive reports by Dr N of each of those interactions lead her to firm the view (reinforced during her oral evidence) that X has a secure attachment with each of his parents. Moreover, to the parties’ credit, they each acknowledge that they both love X,[22] and that they are each committed and caring parents.[23] I accept Dr N’s opinions about the quality of X’s relationship with each of his parents and the parents’ own observations about their love and devotion to X.
[22] Report of Dr N dated 10 February 2022, paragraph 95.
[23] Report of Dr N dated 10 February 2022, paragraph 96.
What those interactions, and observations by Dr N and each of the parents however underscore, is the significant loss to X if he does not have the continued committed physical presence of both of his parents in his life on a day-to-day basis. These factors are among the many that make the circumstances of this case all the more difficult to balance.
I unreservedly accept the opinion proffered by Dr N, as variously expressed throughout both reports and reinforced during her oral evidence as to the negative psychological impact on X when considering the effect of the parties’ competing proposals which would inevitably see X separated from one of his parents.
In the first report Dr N commented:
93.Any actions which sever a child’s regular contact with the parent or interrupt the continuity of care provided by a parent are unwise and stand to have a detrimental effect on the strength of a child’s attachment relationships. For a child of [X’s] age whose attachment relationships have been through the formative stage, it is important that his relationships with both parents consolidate by him spending regular time preferably weekly with each parent. A parental relocation internationally poses a risk to the continuity of the parent/child and other significant relationships even when the parents’ intentions might be otherwise. This can have harmful effects on the psychological wellbeing of a child who may come to egocentrically believe that it is their fault that they do not have both parents in their lives or they may find themselves fantasizing about the absent parent.
(As per the original)
In the second report Dr N commented:
65.The Court is therefore left with the option of [X] not be able to spend time on a regular basis with one of his parents. That is likely to have enormous impact on those relationships. Potentially, the relationship with one parent would be watered down and with significant others unless the parties make a concerted effort, could result in one of them and significant others slowly drifting out of his life. When children are separated by virtue of geography it is vital that various forms of technology are used to communicate. It would be imperative that any [X] has with the non-live with parent be managed in the private space and free of distractions.
(As per the original)
The evidence pertaining to the mother’s mental health
A significant feature of the mother’s case, including through each of the assessments by Dr N, was the state of her mental health.
There was no dispute between the parties (and I accept) that the mother had been diagnosed with anxiety and depression. From the evidence before the court, it appears that this diagnosis was made at around the same time as the parties’ separation and included the mother suffering “daily anxiety attacks”[24] and was exacerbated by the death of her father and a number of family members and the travel restrictions imposed by the pandemic.[25] In addition, there appears to be no dispute that the mother had previously suffered a “depressive episode” in or about 2014 associated with the termination of a pregnancy to the father, which she regretted.[26]
[24] Report of Dr R dated 5 September 2023, paragraphs 20-21.
[25] Report of Dr R dated 5 September 2023, paragraph 26.
[26] Report of Dr R dated 5 September 2023, paragraph 25.
The significance of the mother’s mental health from her perspective is that her case rested on the proposition that her mental health would improve significantly if she were able to relocate to Country D. It is for this reason that the mother advanced a case that she would relocate to Country D with or without X.
In support of this aspect of her case the mother relied on the evidence of her treating psychotherapist Ms B, from whom the mother sought treatment commencing in early 2021 and ongoing, to address the symptoms of her depression.
In addition, on 18 August 2023 the parties mutually invited the court to make an order appointing a psychiatrist, Dr R, to act as a single expert to assess and report upon the following matters in relation to the mother:[27]
[27] This order was made after the mother unsuccessfully attempted to rely on an assessment from a psychiatrist which she had unilaterally obtained.
a. the Mother’s relevant medical history;
b. the Mother’s psychiatric, psychological and emotional health and functioning;
c. any relevant diagnosis or description of her personality, presentation or functioning;
d. if appropriate, suggested treatment or management, and the likely prognosis, and
e. any incidents of the Mother’s functioning that may be relevant to her capacity to parent and meet the needs of the child [X], born […] 2017 (the child)
f.the Expert’s opinion as to the Mother’s current mental health symptoms and/or conditions, and the effect of such conditions (if any) on her capacity to provide for the needs of the child in the event that either:
i. the child is permitted to relocate to [Country D] with the Mother; or
ii. the child is not permitted to relocate to [Country D] with the Mother;
g.Any other relevant matters to the Mother’s mental health and her capacity to parent.[28]
[28] Orders of 18 August 2023, Order 1.
Dr R’s evidence both written and amplified by his oral evidence, has been of great assistance to the court in these proceedings, as he has provided an independent assessment of the mother and her mental health, free from emotion.
Whilst I do not ignore the evidence of Ms B, I prefer the evidence proffered independently by Dr R (who in turn considered the reports of Ms B as part of his assessment), not only because of his independence and the fact that the opinions expressed in his single expert report were undisturbed by cross examination, but also because he is appropriately qualified to proffer the opinions that he has. As Dr R succinctly identified in his report, the purpose of his report was to address the mother’s “medical, psychiatric, psychological history, parenting capacity and functioning”,[29] and I consider that he fulsomely, and with care and consideration, addressed all that he was asked to address.
[29] Report of Dr R dated 5 September 2023, paragraph 4.
I specifically accept the following matters identified by Dr R:
(a)The mother’s self-report to Dr R of her presenting symptoms. Those symptoms include, physical symptoms, feeling sad, teary and low and demotivation.
(b)That as a result of her depressed mood and anxiety, the mother was prescribed antidepressant medication in mid-2021, the dosage of which has been gradually increased.[30]
(c)That whilst medication has improved the mother’s symptoms, Dr R noted the mother as suffering from two unfortunate side effects from that medication, being weight gain[31] and “emotional blunting”.[32]
(d)Concurrently with the mother’s mental health symptoms, in late 2022 the mother also commenced hormone replacement therapy[33] and in mid-2023 she was diagnosed with low iron which Dr R opined to have likely been causative of the mother’s “persistent symptoms of fatigue”.[34] The extent to which these factors combined to impact the mother’s mental health are unknown, but they are likely to have had some impact.
(e)Dr R’s assessment (similarly made by Dr N) that the mother is a “bright, committed and motivated individual” who was “highly competent in all aspects of functioning”.[35]
(f)Dr R’s assessment that the mother’s periods of poor mental health had not impacted her ability to parent X.[36]
[30] Report of Dr R dated 5 September 2023, paragraph 23.
[31] Report of Dr R dated 5 September 2023, paragraph 23.
[32] Report of Dr R dated 5 September 2023, paragraph 29.
[33] Report of Dr R dated 5 September 2023, paragraph 41.
[34] Report of Dr R dated 5 September 2023, paragraph 43.
[35] Report of Dr R dated 5 September 2023, paragraph 58.
[36] Report of Dr R dated 5 September 2023, paragraph 85.
Significantly I accept Dr R’s opinion that the mother’s depression and associated panic attacks:
(a)Improved from approximately late 2022;[37] and
(b)On the mother’s own self-report had resolved by the time of Dr R’s assessment.[38]
[37] Report of Dr R dated 5 September 2023, paragraph 66.
[38] Report of Dr R dated 5 September 2023, paragraphs 73, 80.
I also accept Dr R’s opinion that the mother “was identified to have a good prognosis, should she return to Country D or remain in Australia”.[39]
[39] Report of Dr R dated 5 September 2023, paragraph 83.
It is to the mother’s credit that she had a significant level of insight to identify her poor mental health, seek treatment and comply with treatment recommendations. This not only evidences the mother’s insight, but it also evidences her commitment to X by ensuring that she maintains optimum mental health to enable her to provide optimum care and parenting to X.
As a result, I hold some optimism that the mother will continue to seek treatment as necessary following the outcome of these proceedings; including the recommendations made by Dr R “to address her diet, sleep and exercise when addressing her mental health”.[40]
[40] Report of Dr R dated 5 September 2023, paragraph 82.
I am conscious that in her oral evidence the mother indicated that she did not accept or agree with Dr R’s opinion; particularly his opinion that the mother had a good prognosis whether she lived in Australia or Country D, nor his opinion that the mother’s parenting capacity had not been affected by her period of poor mental health. I, however, place no weight on the mother’s unqualified opinion in this regard and rely on the opinion of Dr R who I am satisfied carefully explored those issues in his assessment and had regard to all of the necessary material to make that assessment.
The evidence of the parents
It was obvious throughout the evidence of each of the parents, that they both love X deeply and that they each were each understandably struggling with the uncertainty of X’s future living arrangements.
What was striking however, when each of the cases presented are viewed wholistically is that in my view the mother did not appear to have fully thought through the impact of her plans to relocate to Country D with or without X, nor the practicalities of doing so. To that end, it appears that whilst in every other respect the mother’s care of X cannot be faulted, where the topic of her relocation to Country D is concerned, she appears to have become fixated and intractable such that X’s best interests appear to have taken secondary preference to the mother’s. I have come to this view for a range of reasons, as identified in the discussion that follows and throughout the balance of these reasons.
I am satisfied that the mother focussed on the negative aspects of her life in Australia with an inability or unwillingness to acknowledge few (if any) positive aspects of her life in Australia. Those positive aspects include (but are not limited to) her flexible work arrangements, her financial resources, income and earning capacity which gives her the ability to live comfortably and travel to Country D frequently (as she has done in the post separation period) and the support of the father in parenting X (including but not limited to times when the mother is sick and/or has commitments which have required the father to step up and assist with X). An example of this is recorded in the second report of Dr N where it is recorded:
[Ms Rana] reported that [X] is the only joy in her life but otherwise there is no happiness, fun or pleasure. She stated that she used to love her work but she no longer has any passion for that either. She claimed that during the recent period she was in [Country D], her life felt resuscitated by her family being around her and having regular contact with them. She added that she said to herself “this is what life is meant to be like”. She said that she also observed [X] who she enrolled in school having a different demeanour and being a transformed child.[41]
[41] Report of Dr N dated 13 February 2023, paragraph 10.
I am satisfied that the mother is not as isolated in Australia as she promoted to Dr N and the court. I am satisfied this is the case as the mother acknowledged in her oral evidence she has engaged in outdoor exercise programs, she has travelled both within Australia and internationally across 2022 and 2023, she socialises with friends, including at least one friend she made through mother’s group and her neighbour.
I am satisfied that the mother tended to see a relocation to Country D with or without X through the prism of rose-coloured glasses, without any meaningful understanding or articulation of any difficulties for herself or X if she was permitted to relocate X to Country D or if she relocated to Country D alone. Whilst there are numerous examples of this, the following tranches of the mother’s oral evidence stood out:
(a)One being the mother, seemingly for the first time in response to a series of questions from the bench, meaningfully considering the timing of any move to Country D with or without X. In answering these questions the mother indicated that she would like to “consult with some specialists” on how to effectively manage the transition for X, and that she did not know how long it would take to get to a stage where X understood what was happening. The mother went on to articulate that she would delay the move to Country D for some months (ultimately identifying a delay until mid-2024) if X was to relocate with her, but that she would move relatively quickly if she was not permitted to relocate X. This evidence was striking for a number of reasons; firstly, it was surprising that the mother who I am satisfied in all other respects researches and carefully considers her options, had not already sought that separate advice given the significant consequences of her proposals. Secondly, it was striking because the professional opinion from Dr N, the one expert that has commented on the impact on X, is that X’s best interests would be served by him living proximate to both of his parents, which indicates that he might never get to a position where he is comfortable with the consequences of the mother’s relocation choices. When considered together, what this suggests is that the mother is only prepared to engage with the professional advice that she agrees with and which supports her desired outcome of a relocation with X to Country D (a further example of this being her rejection of Dr R’s evidence).
(b)Another being the mother identifying that there is only a “possibility” of regretting moving to Country D if she does so without X. The latter was particularly difficult to comprehend given the mother’s role as X’s primary carer to date, the fact that the mother has taken the lead in the decision-making regarding X, and that on her own account the mother had never spent more than six days at the most separated from X. The impression formed from all of this evidence being that the mother had not seriously considered the possibility that the court might make an order which had the effect of preventing her relocating X to Country D, and that she had not fully contemplated how such an outcome might impact her; particularly if she was to relocate on her own.
(c)Another example is that on more than one occasion the mother addressed the impact to X on her relocating to Country D without him as “possibly” causing him psychological harm. Again, this was jarring in the face of the expert evidence (as earlier discussed) which put that outcome for X beyond the realms of possibilities and into the realms of certainties as best can be predicted.
A further example of the mother’s tendency to view a relocation with X to Country D through rose-coloured glasses is her focus on the benefits to X in moving to Country D, particularly so far as his relationship with the maternal family and friends are concerned, with limited acknowledgement of the loss of the relationships that X has in Australia; the concessions in this regard, in the main, coming when the mother was probed in cross examination. This conclusion is further evidenced by the mother describing X as having “the time of his life” during his trip to Country D with her in late 2021 – early 2022,[42] without any acknowledgement that a holiday to Country D is very different to X living there full time and being permanently separated from the father and his sisters and his familiar life and surrounds in Australia.
[42] Report of Dr N dated 13 February 2023, paragraph 30.
I have also formed the view that the mother came across as “nit-picking” and manufacturing complaints about the father. For example, those recorded at [34]-[36] of Dr N’s second report dated 13 February 2023, which were acknowledged by her during her oral evidence and include complaints about the father’s personal hygiene, his care of X, X having faeces stains in his underwear and smelling of urine after returning from the father, the father’s dog having scratched X and the father allowing X too much screen time. Another example is the list of issues relating to the father that the mother intended to privately send to Dr S when she was assessing X, but which she mistakenly sent to the father.[43] I do not accept that the mother genuinely holds these concerns about the father, as they are incongruous with the mother ultimately being prepared to leave X in the father’s care and relocate to Country D without X. When viewed in this light, these complaints had an air of the mother misguidedly throwing everything she could in support of a relocation of X to Country D, rather than the mother holding genuine concerns that the father is unable to meet X’s needs.
[43] See Exhibit “F2”.
I am also satisfied that the mother did not appear to have clear plans about her move to Country D and what that would look like for X.
(a)For example, there was no meaningful evidence presented about the school or choice of schools that X might attend beyond identifying the potential of going to the same school as his cousins (the children of the maternal uncle) or the “local school”. Significantly, however the maternal uncle gave evidence that he had not had any discussions with the mother about where X might go to school in Country D.
(b)In addition, the mother equally did not present any cogent or clear plans about her likely living arrangements in Country D. Whilst I accept that the mother indicated that she was likely to live in the house that she owns in City C, Country D, she also positively advanced the likelihood that she would need to sell that home together with the option of living close to the maternal uncle and his family (who presently live 40 kilometres from her City C home) or the possibility of the maternal uncle and his family moving to facilitate this. Compounding this confusion, when the paternal uncle gave oral evidence, the impression formed was that the idea of his family moving to live closer to the mother had not progressed beyond being simply an option that the mother and the maternal uncle had briefly discussed, with the maternal uncle making no clear commitment in that regard.
(c)In addition, the mother promoted her brother as being a person that she could rely on for additional support in caring for X if he was to relocate with her to Country D. However during his oral evidence the maternal uncle indicated that he had not assisted the mother in caring for X during earlier periods of travel to Country D (significantly including in around late 2021 to early 2022 when the mother ultimately decided to place X in preschool), and that he and his wife would be unlikely to be in a position to assist the mother with picking X up from school in the future.
I am satisfied that it is appropriate to make these findings at [61]-[67] herein, for the reasons already discussed, but also in light of Dr N’s opinion (in her first report) as to the mother’s lack of insight as to the impact on X at that stage if she were permitted to relocate him to Country D (which I accept) and which having heard the evidence of the mother I consider to have changed very little by the time of trial despite Dr N raising concerns in her first report dated 10 February 2022 - over a year earlier:
114.[Ms Rana] currently receives significant support from [Mr Macaulay] on a regular basis. Notwithstanding this involvement, she seems to have limited insight into the impact on [X] of a separation from [Mr Macaulay] and rationalized that she did not know how much of a loss it would be for [X] as he never asks for [Mr Macaulay] and sometimes does not want to spend time with him while preferring to be with his sisters. Her attitude seems to minimize the significance of the father/son relationship and the importance of that relationship being maintained by regular parent child contact. Being separated from [Mr Macaulay] for protracted periods is likely to contraindicative to maintaining the attachment [X] has to his father. Similarly, [X] is likely to miss the regular contact with his only siblings his sisters albeit that they are considerably older than [X].
(As per the original)
My conclusions in this regard are further fortified by the mother’s continued insistence that the father could move to Country D if he chose to do so, despite this not being an aspect of the father’s case, the father’s clear evidence that he would not consider the same until both of his girls were over 18, and the mother equally acknowledging the father’s devotion to Ms F and Ms G (as recorded by Dr N at [74] of the first report). Moreover, I am satisfied that the mother holds an unrealistic/idealised view that the father would be able to stay with her in Country D if he travels there to spend additional time with X, despite the fact that the parties were unable to live together under the same roof to co-parent X in the post separation period.
Conversely, I am satisfied that the father was able to understand and acknowledge the difficulties for X if he was to be separated from either of his parents and/or his sisters. An example of the father’s insight in that regard (which I accept) was recorded by Dr N at [14] and [17] of her second report.
I am equally satisfied that the father has been able to prioritise X’s needs. This is evidenced for example by his ability to agree gradual increases to his time spending with X, despite it not progressing at the rate that he would have liked, and for example by his acquiescence and agreement to the mother’s post separation travel to Country D for extended periods of time, particularly that which occurred following the death of her father which was in short compass of the mother and X having returned from an extended period away.
Whilst the father urged the court to make a finding that the mother would not carry out her threat/strategy to relocate to Country D without X if the court was to make an order that X live in Australia, I do not consider it necessary that I make any such finding.
I have formed this view cognisant of Dr R’s opinion expressed during his oral evidence that he considered that the mother would not relocate to Country D if the court were to make orders requiring X to remain in Australia.
I decline to make any such finding as I consider it futile to do so. It is impossible to predict the future with certainty, and I accept that any number of factors might ultimately impact the future decisions of each of these parents; including for example these reasons and the orders made. Indeed, the mother herself acknowledged so much herself in her oral evidence by identifying that if X were not permitted to relocate with her and he was not coping with her move, and if there was some change to her circumstances, then she would consider returning to live in Australia.
I am, however, satisfied when regard is had to the mother’s self-report to each Dr N and Dr R, together with her own evidence, that the mother presently does not wish to remain living in Australia. I am also satisfied that the mother’s misgivings about continuing to live in Australia have been compounded by a range of factors including but not limited to the separation of the parties, her period of poor mental health, the covid pandemic which restricted her ability to travel, particularly to see her family in Country D, and the death of her father.
BEST INTEREST CONSIDERATIONS
I have already considered and discussed a number of the factors outlined in s 60CC of the Act earlier in these reasons. I accordingly do not propose to repeat those matters here. Rather, I only propose to consider below those factors that have not otherwise been discussed earlier and that are relevant in my determination of the matter.
The Primary Considerations
The benefit to 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 from being subjected to, or exposed to, abuse, neglect or family violence
Both of the parents implicitly agree that there is a benefit to X of having a meaningful relationship with each of his parents. I accept Dr N’s assessment that both parents have demonstrated a “willingness and ability to facilitate [X’s] relationship with the other party”, and that this “augurs favourably for their future co-parenting relationship”.[44]
[44] Report of Dr N dated 10 February 2022, paragraph 100.
However as identified earlier, the effect of the mother’s desire to relocate X to Country D, or if X was to remain in Australia with the father, without the mother, will necessarily result in X’s relationship with his non-residential parent being impacted.
Whilst less than optimal, because of the parents’ mutual desire and willingness to act in X’s best interests and maintain a relationship with his non-residential parent (as evidenced by their agreement in the Draft Minute), I am confident that each of the parents will facilitate that relationship occurring. I am satisfied that this will ameliorate, although not obliterate the inevitable impact on X of the loss of the daily presence of one of his parents.
It would however be remiss of me not to acknowledge here (as discussed throughout these reasons), that the reality of the competing proposals of the parties is that there will undoubtedly be some level of psychological harm for X, no matter how well the parents manage the eventual transition for him. Unfortunately, this is an outcome that the court is unable to prevent.
The Additional Considerations
The nature of the relationship of the child with each of the child’s parents other persons (including any grandparent or other relative of the child) – s 60CC(3)(b)
I am satisfied from the evidence of Dr N that X has a close and loving relationship with each of his parents.
Whilst it is likely that X has a familiar and warm relationship with the maternal family in Country D, and seemingly the mother’s friend Ms Q and her family, the court does not have the benefit of any expert evidence confirming or commenting on the quality of those relationships and no findings in that regard are able to be made. Rather, the strength of those relationships are assumed from the frequency X has travelled to Country D, the opinion of each of the parents and the warmth with which the maternal uncle and Ms Q spoke of the mother and X.
In contrast, when regard is had to Dr N’s second report I am satisfied that X has a close and loving relationship with his sisters, Ms G and Ms F.
Moreover, it is clear from the evidence of Ms G (which I accept), confirmed by the father and recorded by Dr N, that significant importance is placed by each Ms G and Ms F in nurturing, maintaining, and prioritising the sibling relationship with X. Ms G’s oral evidence in this regard was particularly compelling.
Whilst I accept that Ms F and Ms G are in the early stages of adulthood and forging their own lives, I am equally satisfied that they each view X as a significant part of their lives. I am comfortable to make this finding when regard is had to the mutual evidence of the father and Ms G (also recorded at [13] in Dr N’s second report), that both Ms F and Ms G plan the time that they spend in the father’s home (at least two to three nights per week), around when X is scheduled to be in the father’s care and so as not to clash with their separate commitments, prioritising spending time with X.
Moreover, I place significant weight on:
(a)The positive interactions between X and his sisters as observed by Dr N,[45] which she described as “warm and familiar”;[46] and
(b)Dr N’s separate view in her oral evidence that both Ms G and Ms F have “[X] high on their radar and that they try to maximise time that they spend with their father with the time [X] is with him”.
[45] Report of Dr N dated 13 February 2023, paragraphs 51, 52.
[46] Report of Dr N dated 13 February 2023, paragraph 53.
I specifically reject as self-serving the mother’s assessment (at [77] of Dr N’s first report) that X does not have a strong relationship with his sisters; albeit I acknowledge that by the time of the second report the mother appeared to accept that X has a close relationship with both of his sisters.
I also accept the considered opinion of Dr N expressed during her oral evidence when she reflected on X’s relationships with significant others. To that end, Dr N considered (and I accept):
(a)That if X were to relocate to Country D with the mother, the loss of the sibling relationship for X would be significant; and
(b)Whilst X would gain important closer maternal cousin, family and family friend relationships if he were to relocate with the mother to Country D, the significance of those relationships in X’s life are a “step removed” when compared to the importance of the sibling relationship which has been established as a known constant in X’s life to date, and that one could not act as a replacement for the other.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, and to spend time with the child, and to communicate with the child – s 60CC(3)(c)
I am satisfied from all of the evidence that both parents have been actively involved in the decision making for X in every aspect of his upbringing.
I am also satisfied that the decision making for X has largely been led by the mother, who took on the role of X’s primary care during the relationship, which has continued in the post separation period. This, however, is not a criticism of the father. It is simply a reflection on the roles of each of the parties during their relationship and the nature of their relationship. I am assisted in coming to this view from the parents’ own assessment of the way in which they interacted with each other during the relationship, particularly as to disagreements, as recorded in the first report of Dr N, where she records the parties’ self-reports in the following terms:
9. … [Mr Macaulay] referred to [Ms Rana] as being controlling and unless he agreed with her views it became an argument which escalated with no resolution. He described [Ms Rana] as being unwilling to consider alternatives and was resistant to any views that did not concur with her own. He said that her response when she was challenged would be to say there is no point talking. [Mr Macaulay] stated that he was left feeling he was in the wrong if he did not agree with [Ms Rana].
…
11. [Ms Rana] stated that she had issues in her relationship with [Mr Macaulay] and some conflict but there was no violence. She asserted that earlier in their relationship [Mr Macaulay] would follow her when they argued, while at other times when he became agitated, [Mr Macaulay] restrained her and he would stop and stand in her way. She described herself as a person who wants to reach a resolution and conclusion in the conflict situations, not have it raised again and move on. She stated that if that did not occur in her relationship with [Mr Macaulay], she would either get angry or walk away and close up.
As identified earlier, I am also satisfied that the parents, despite their differences have largely been able to ultimately successfully navigate time spending and communication arrangements and all else that comes with co-parenting X in a post-separation environment.
The presentation of the father’s case during the trial and his evidence appeared to focus on what appeared to be his perception that the mother dominated the parenting of X, including but not limited to all decision making about X, his travel to Country D in the post separation period, his living arrangements and time spending with the father. For the reasons discussed at [89]‑[91] herein, I do not consider that these criticisms of the mother are warranted. Instead, these circumstances are emblematic of the nature of the parties’ relationship which has extended to their post-separation co-parenting dynamic.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child – s 60CC(3)(ca)
There are no concerns that either of the parents have either failed to fulfill, or that they might in the future fail to meet their obligations to maintain X.
For the reasons that follow, I am satisfied that both of these parents presently have the capacity to earn a comfortable income and they appear committed and driven to continuing to do so.
In addition, I am satisfied that in the post separation period, the father has prioritised the financial needs of the mother and X, in circumstances where he ultimately vacated the former matrimonial home and he continued to make total payments to the mother’s ultimate benefit (including mortgage payments over the former matrimonial home), which she acknowledged to have been at least $12,000 per month.
So far as the father is concerned, whilst he is no longer a senior employee at J Financial Services, I am satisfied that he continues to work for J Financial Services and other organisations on a contract basis. To that end, I accept that the father’s current contract with J Financial Services is due to shortly expire at the end of early 2024, and at the time of trial there had been no confirmation of his future contract beyond an indication that he would need to split his contractual obligations between several regions. I also accept that the father earns a substantial income ranging between no less than $550,000 and up to $766,000 per annum depending on when the father receipts payments for the work he undertakes. I am equally satisfied that the father has the ability to be flexible about the hours that he works, where he is based to undertake that work, and the manner in which he structures his work around his commitments, including his commitments to X, Ms G and Ms F. It is expected that the father will receive significant funds from the sale of the former matrimonial home (approximately $1,000,000) and that in December 2022 he had savings of approximately $475,000.[47] Taking all of these considerations into account, I am satisfied that the father has ample financial resources to meet his needs and those of X and that he will apply those resources accordingly.
[47] Exhibit “F6”.
So far as the mother is concerned, she too is self-employed and works on a contract basis. The mother’s position is that her employment prospects in Country D are likely to increase, although there is no independent evidence to support the mother’s assertion in that regard and I am not able to make any such findings. At present the mother earns no less than approximately $114,000 per annum ($150,000 in the financial year ending 30 June 2021,[48] with the likelihood that the mother’s income and benefits derived from her work are in reality more, as a result of the mother’s self-employed status and the ability of the mother to structure her financial affairs to her benefit, including making voluntary superannuation contributions and loans to herself). The mother additionally owns a home in Country D which is presently untenanted, together with a condominium in the United States (the combined value of these properties being no less than $1,442,000),[49] and she will receive a significant sum of money (no less than $700,000) from the eventual sale of the former matrimonial home with which to rehouse herself in either Australia or Country D if she chooses not to live in the home she owns in Country D. In addition, the mother has combined superannuation entitlements in Australia and Country D of no less than $372,000,[50] a life insurance policy with a cash value to the mother of no less than $169,000, and savings of no less than $68,000.[51] In all of those circumstances, while there is a significant income disparity between the parties, I am satisfied that the mother has significant means to live comfortably wherever she chooses to reside and that she has the ability to financially meet X’s needs and that she too will continue to apply her resources accordingly.
[48] Exhibit “F7”.
[49] Exhibit “F6”.
[50] Exhibit “F6”.
[51] Exhibit “F6”.
The mother also asserts that her work hours are likely to be more favourable in Country D as opposed to Australia given her assertion that the majority of her work is based in that region and, if based there, she would be on the same time zone as her work as against the clashing time zones she currently experiences working remotely from Australia. While it appeared to be an agreed fact that the mother undertakes work in that region, there was by no means agreement between the parties that this was the only work available to the mother and/or that the clashing time zones presented an insurmountable hurdle for the mother. While it is difficult for me to form any concluded views about these matters in the absence of any independent evidence, I do, however, think I can place some significant stock on the fact that the mother has successfully managed the competing time zones from a work and life balance perspective for her entire life in Australia; a period of no less than ten years. Additionally, with X starting school I am satisfied that the mother has the capacity for more flexible work arrangements around her care of X. Whilst I accept however, the mother now has a preference to live and work within the same region, I do not consider the mother’s work preferences to be an insurmountable hurdle for the mother which would point towards the necessity of her relocating to Country D. Rather, I am satisfied that wherever the mother resides (Australia or Country D), she will be able to manage her work commitments around her parenting commitments if she continues to be X’s primary carer, or if not his primary carer, whenever she spends time with him. Her ability to do so is something that she demonstrated when travelling to Country D with X in around late 2021 to early 2022, when she placed him in school.
In addition, I consider it relevant to take into account the father’s commitment to meeting the financial obligations towards his two older children. In my view this indirectly relates to X, as it appears to be an agreed fact (as recorded in the first report of Dr N at [5]-[6]) that the father has met the private school fees for his two older children. While not conclusive of the father’s preparedness to meet his financial obligations towards X in the future, his willingness to do so with his older children, is as ready a predictor as is available to assume that the father will apply the same level of financial commitment to X in the future.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living) – s 60CC(3)(d)
The effect of the inevitable changes to X’s circumstances on each of the parties’ proposals requires further consideration to that previously identified earlier in these reasons.
If X were to relocate to Country D those changes would most significantly include the separation from the father and his siblings, Ms G and Ms F. In addition, X would be living in a new home, attending a new school, making new friends and finding his way in the world in an entirely new, but not entirely unfamiliar environment, all without the support of having both of his parents and siblings in his life.
Conversely, if X were to remain living in Australia, there would be less changes for X to navigate given he would be living in the familiar surrounds that he has lived in to date; albeit likely in a new home. Most significantly however, if and/or when the mother relocates to Country D without X, X would suffer the loss of the daily presence of the mother in his life in circumstances where it is unchallenged that the mother has been X’s primary carer to date.
On any view the potential impact upon X of each of the parents’ proposals will be life changing, because the reality of those competing proposals is that the quality of the relationship that X has with his non-residential parent will necessarily change. The non-residential parent will move from being substantially and significantly involved in every aspect of X’s life, and importantly X’s day-to-day life (including but not limited to his schooling, extracurricular activities, social activities, entertainment and down-time) to instead having their relationship at the minimum restricted to school holiday periods and electronic communication.
Whilst I accept that the mother has been X’s primary carer and that she has travelled alone with X for extended periods of time, X is however spending substantial and significant time with the father of five nights a fortnight together with the sharing of school holidays and special occasions. Whilst I accept that this is not an equal shared care arrangement, I am also satisfied that at least in the immediate past, there is not a significant disparity in the amount of time that X spends with each of his parents.
I accept Dr N’s opinion as expressed in her first report as follows:
117.Given [X’s] age, it is difficult to imagine that the proposal of either party to live in different continents will make it viable or realistic for [X] to effortlessly slot into making the electronic contact daily and spending the time the parties propose during school holidays with the other parent. In this case, it is inevitable that the continuity in the physical time [X] can spend with one parent will be compromised and that cannot compensate for face to face communication. Relocation raises questions about the capacity of the parties to give priority to child’s relationships with one of his parents as well as other relationships he has formed with his paternal extended family.
118.Should [X] not be able to spend time on a regular basis with one of his parents, that is likely to have enormous impact on those relationships. Potentially, the relationship with one parent would be watered down and could result in them slowly drifting out of his life. Relocation is furthermore likely to seriously diminish the social capital one parent has to offer [X]. Although [Ms Rana] is the parent who is attending to most of [X’s] educational, medical and extracurricular needs, if [X] remains living in Australia with both parents, [Mr Macaulay] is likely to assume a greater presence in [X’s] activities especially if the parties can move towards arrangements for [X] to spend substantial time in each household. One of the parents’ capacities to remain involved in [X’s] education and other activities on a hands-on basis will become untenable should they live in separate countries. The parties need to be cognizant of the losses that could accrue for [X] of not having both parents visibly involved in his life and delighting as an audience to his activities, particularly if they can do so with a collaborative spirit.
119.For [Ms Rana] there are undoubtedly benefits which are likely to accrue by relocating. While this might be the case, the Court needs to balance her proposal against the losses from [X] of being devoid of the significant presence of one parent in his life. It is impossible to justify therefore, that this would be a child focused position.
(As per the original)
I have also considered the mother’s position that her primary care of X is known and viable, whereas the father’s primary care of X is untested. However again, I am comforted by the various views expressed by Dr N, particularly during her oral evidence together with those matters identified throughout these reasons which lead me to conclude that:
(a)The father is able to meet X’s needs; and
(b)The father’s close relationship with Ms F and Ms G is indicative of the father’s commitment to parenting and his ability to parent.
A feature of the parties’ oral evidence was the nature and quality of the Facetime/virtual communications that the parties have been able to facilitate between X and the father during X’s travel to Country D with the mother in the post separation period. The relevance of this evidence seemingly forming a focus of the father’s case as he appears to apprehend that the mother may not be entirely co-operative in that regard if she were to relocate to Country D with X. Whilst there was some conjecture between the parties about the quality of those communications, the willingness of the mother to facilitate the same, and the parties’ own expectations, I am satisfied that ultimately adequate (likely not optimal) virtual communication occurred between the father and X, and that the parties (despite their differences), were able to successfully navigate this hurdle. That the parties were able to do so, bodes well for the future communications between X and his non-residential parent, wherever he ultimately resides.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis – s 60CC(3)(e)
The proposals of each of the parents come with unavoidable international travel expenses together with the incidental costs associated with any such travel.
Neither of the parties armed the court with information about likely travel duration and cost between Australia and Country D. The father reported to Dr N that the travel time between Australia and Country D is close to 24 hours.[52] The mother’s best evidence is found in her affidavit filed on 12 October 2023, that she was searching for flights less than 24 hours in transit and paid $5,500 for the flights to travel to Country D in mid-2023. [53] It is not clear whether this fare included the cost of return flights for both X and the mother.
[52] Report of Dr N dated 10 February 2022, paragraph 34.
[53] Mother’s affidavit filed 12 October 2023, paragraphs 15, 17.
Whilst I accept that international travel costs and flight duration can fluctuate depending on the route, timing and carrier (not to mention the ability of each of these parents to ameliorate some of those expenses by coupling the travel with a work-related trip as they have done in the past), it would have been helpful to have some more certain information to rely upon. The failure to put that information before the court coupled with my comments throughout these reasons about the income and earning capacity of the parents, and the ability of the parties to agree a regime of time spending wherever X resides, enables me to infer that each of the parents consider that they are in a position to fund those travel and incidental costs. I am equally satisfied that both parents have the financial means and the work flexibility to enable them each to travel and spend time with X more frequently than the proposed orders envisage.
The difficulty however with failing to put that information before the court is two-fold, firstly because it does not enable me to independently assess how comfortable or onerous those arrangements might be for all concerned (particularly X), but importantly, it provides me with no foundation to understand the reasonable likelihood of X’s siblings having the capacity to travel to spend time with him in Country D.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs – s 60CC(3)(f)
As identified earlier in these reasons, I am satisfied without reservation that both the mother and the father have the capacity to meet X’s needs in every way. As earlier discussed, there are numerous examples throughout each of the parents’ evidence and that of the experts which allows me to come to this conclusion. In addition, this can be inferred from the parties’ ability to agree X’s current living arrangements and those proposed wherever X ultimately resides which would see X living with one or other of the parents.
In addition, the father’s ability to meet X’s needs can be inferred by the mother’s preparedness to relocate to Country D without X, as I do not accept that she would consider doing so if she thought that the father was unable to meet X’s needs.
CONCLUSION
I have carefully considered the competing proposals of whether X live in Country D with the mother or remain living in Australia and move into the father’s primary care.
As I have attempted to make clear throughout these reasons, the decision the court has been asked to make is finely balanced. The decision is made all the more difficult because I consider that both parents are committed to X, and he is in the fortunate position of having two parents who love him deeply and who each have exceedingly capable parenting abilities.
Ultimately however when weighing up all of the matters that I have discussed throughout these reasons, on balance I have formed the view that X’s best interests are served by remaining in Australia.
I accept that this will necessarily mean that X’s primary care will shift to the father, but I consider that in all of the circumstances of this case, the mother’s interests and freedom of movement must give way to the best interests of X.
For all of the reasons I have identified, I shall make an order that X live with the father in Australia, and I otherwise adopt the joint position of the parties as to the balance of the orders to be made.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 23 February 2024
- AGLC
- Rana & Macaulay (No 2) [2024] FedCFamC1F 82
- Case
- [2024] FedCFamC1F 82
- Decision Date
CaseChat Overview and Summary
The court weighed the evidence presented by both parents, including expert reports and affidavits. It found that X has a close and loving relationship with both parents, and while he likely has strong ties with his maternal family in Country D, he also has a significant bond with his father and his half-sisters. The court emphasised that both parents are committed to X and possess capable parenting skills. Ultimately, the court concluded that X's best interests would be served by remaining in Australia with his father, while still maintaining regular contact with his mother and extended family in Country D.
The court's decision was based on a detailed analysis of the evidence and expert opinions, which indicated that X is developing healthily and within normal limits. The court acknowledged the potential psychological impact on X regardless of the outcome but determined that the benefits of remaining in Australia with his father outweighed the advantages of relocating to Country D. The court ordered that X live with his father in Australia, with specific arrangements for time-sharing with his mother, including visitation periods during school holidays and special occasions. The court also addressed other logistical and administrative aspects of the parenting arrangements, such as travel plans, communication between X and his parents, and the issuance of passports.
Orders
Orders of the court
SYC 1198 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS RANA
Applicant
AND:
MR MACAULAY
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1. That the child X (“X”) born 2017 live in Australia with the father SAVE AND EXCEPT as provided for in paragraph 4
BY CONSENT IT IS ORDERED:
Parental Responsibility
2. That the parties shall have equal shared parental responsibility for X.
Time Spending with the Mother if the mother does not live in Australia
3. In the event that the mother lives in Country D:
(a) X shall spend time with the mother as follows:
(i) In every year, in Country D for a period of four (4) weeks during the Country D summer, at dates as agreed between the parties, and coinciding with X’s winter school holiday period, with the mother to nominate and pay for X’s return Economy class airfares.
(ii) In every even numbered year, in Country D for a period of four (4) weeks over the Christmas period (such period to commence after Christmas Day) as agreed between the parties in writing (and failing agreement from 3 January – 31 January).
(iii) In every odd numbered year, in Australia for a period of four (4) weeks over the Christmas period (such period to commence after Christmas Day) as agreed between the parties in writing (and failing agreement from 3 January – 31 January).
(iv) At any other time the mother travels to Australia, at all reasonable times as agreed between the parties in writing (and no less than half of the time that the mother is in Australia).
(v) To facilitate Orders 3(a)(i) – 3(a)(iv), the parties will ensure that X will not miss more than three (3) weeks in each school year.
(vi) At such further or other times as agreed between the parties in writing.
(b) For the first four periods of time that the mother spends with X pursuant to Orders 3(a)(i) – 3(a)(iv) herein, the period of four (4) weeks shall be broken up into two periods of two weeks where X spends a period of no less than 48 hours with the father, unless otherwise agreed.
(c) For the purposes of Orders 3(a)(i) and 3(a)(ii) herein, until such time that X turns 14 years old, the father shall accompany X to and from City C (or to a location mutually agreed to by the parties), or in the event the father cannot accompany X, another person as agreed between the parents shall accompany X to and from Country D.
(d) In the event the mother travels to Australia then she shall provide the father with four (4) weeks written notice of her intention to travel and the proposed date of her arrival and departure, and she shall be responsible for meeting the costs of her airfares and accommodation, and the father shall not unreasonably withhold his consent to the mother’s proposal.
(e) That upon X attaining the age of fourteen (14) years, the father may elect to travel with X to City C, Country D or alternatively he may elect to take X to the nominated airport in Sydney and ensure that X is placed on the aircraft for travel to Country D; and the mother shall ensure that she is at the nominated airport to collect X.
(f) That in the event the father does not travel to Country D with X pursuant to Order 3(e) above, the mother shall take X to the nominated airport in Country D at the conclusion of all visits and ensure that X is placed on the aircraft for travel to Sydney; and the father shall ensure that he is at the airport in Sydney to collect X.
Living arrangements for X if both parents reside in the same country
4. In the event that the mother lives in Australia, and/or the parties live in the same country:
(a) X shall live with the mother.
(b) X shall spend time with the father as follows:
(i) From the date of these Orders and continuing thereafter during school terms during school terms, on a fortnightly basis as follows:
A. In Week One, from the conclusion of school (or 3:00 pm if falling on a non-school day) on Friday until the commencement of school (or 9:00 am if not a school day) on Monday;
B. In Weeks One and Two, from the conclusion of school on Wednesday (or 3:00 pm if falling on a non-school day) until the commencement of school (or 9:00 am if falling on a non-school day) on Thursday; and
C. For one half of all school holiday periods or as agreed, and failing agreement for the first half in even numbered years and the second half in odd numbered years, subject to Orders 4(c) and 4(d)(i) below.
(c) In the event the mother and X live in Australia, the mother is permitted to travel with X to Country D as follows:
(i) Every odd numbered year, for a period of up to five (5) weeks during the NSW School Summer Holidays as agreed between 15 December and 26 January; and for a period of up to three (3) weeks during the NSW School Winter Holidays, if permitted by X’s school; and
(ii) Every even numbered year, for a period of four (4) weeks during the NSW School Summer Holidays as agreed between 26 December and 26 January; and for a period of up to four (4) weeks during the NSW School Winter Holidays, if permitted by X’s school.
(iii) Apart from the time that X is with the mother for the periods specified in Orders 4(c)(i) and 4(c)(ii) he is to be with the Father for the remainder of the school holiday periods.
(d) That X spend time with the parties on special occasions as follows:
(i) Subject to Order 4(c), at Christmas:
A. In odd numbered years with the mother in Country D in accordance with Order 4(c)(i) above; and
B. In even numbered years with the father in accordance with Order 4(c)(ii) above.
(ii) On Mother’s Day: If not otherwise spending time with the mother in accordance with these Orders, X shall spend time with the mother from 5:00 pm on the Saturday immediately prior to Mother’s Day until 5:00 pm on Mother’s Day.
(iii) On Father’s Day: If not otherwise spending time with the father in accordance with these Orders, X shall spend time with the father from 5:00 pm on the Saturday immediately prior to Father’s Day until 5:00 pm on Father’s Day.
(iv) Subject to Orders 4(c) and 4(d)(i), on X’s birthday:
A. In odd numbered years with the mother in Country D in accordance with Order 4(c)(i) above; and
B. In even numbered years with the father in accordance with Order 4(c)(ii) above.
(v) That for the purposes of changeover and unless otherwise agreed between the parties in writing, the father shall be responsible for collecting X from school or the mother’s residence (as applicable) at the commencement of his time and returning X to school or the mother’s residence at the conclusion of his time with X.
(vi) That for the purposes of meeting the costs of travel in accordance with Orders 4(c) and 4(d)(i), the following shall apply:
A. The mother shall pay the cost of her return Economy airfare to and from Country D; and
B. The father shall pay the cost of X’s return Economy airfare to and from Country D.
(vii) Orders 4(a) – 4(d) above apply until the mother relocates to Country D or in the event the parties are residing in the same country.
Other arrangements
5. That regardless of where X lives:
(a) The party with whom X is living shall cause X to communicate with the other party by telephone, Facetime, or video call no less than twice per week at such days and times as the parties shall agree, and failing agreement:
(i) If X is living in Sydney, between 7:00 am – 8:30 am (Sydney time) each Wednesday, and between 7:00 am – 9:00 am on Sunday (Sydney time);
(ii) If X is living in City C, between 5:00 pm – 7:30 pm (City C time) each Wednesday, and between 5:00 pm – 7:00 pm on Sunday (City C time); and
(iii) On special occasions including X’s birthday, the parent’s birthday, Father’s Day, Mother’s Day, Easter, and Christmas.
(b) That X spend time with the parties on special occasions as follows:
(i) Subject to Order 4(c) at Christmas:
A. In odd numbered years with the mother in Country D in accordance with Order 4(d)(i)(A) above; and
B. In even numbered years with the father in accordance with Order 4(d)(i)(B) above.
(c) That for the purposes of changeover and unless otherwise agreed between the parties in writing, the father shall be responsible for collecting X from school or the mother’s residence (as applicable) at the commencement of his time and returning X to school or the mother’s residence (as applicable) at the conclusion of his time with X.
International Travel for Holidays
6. The mother and the father are authorised to travel with X outside of the Commonwealth of Australia and Country D, provided such travel takes place when X is in their care in accordance with these Orders.
7. In the event that either party proposes to travel with X outside the Commonwealth of Australia and Country D, as soon as practicable, but not less than 28 days prior to the date of departure, the travelling party shall provide to the non-travelling party the following:
(a) a copy of X’s return air tickets;
(b) a copy of the itinerary;
(c) address or addresses where X will be staying whilst overseas; and
(d) a contact telephone number.
8. That each party shall within 7 days of a written request by the other party do all things necessary and sign all required documents (including any application for re issue of a relevant passport for X) to enable an Australian passport, British passport, and a Country D passport to be issued or re-issued in the name of X and the original, and any subsequent passport, shall be retained by the father if X lives in Australia, or by the mother if X lives in Country D.
9. That each party is prevented by injunction from interference with the travel plans of the other party. Interference includes actions such as withholding of a passport in contravention of these Orders, withholding access to X so as to cause them to miss flights, or other wilful disruption of the travel arrangements of the other party.
Other
10. That in the event either party changes their residential address or contact numbers they shall within 24 hours of such change occurring, inform the other party of those updated details in writing.
11. Both parties do all acts and things and sign all documents necessary to authorise any child care, pre-school, and school/s attended by X to provide to each party all particulars of X’s schooling, including but not limited to the provision of school reports, notices of the school, photographs, circulars sent to parents, notices of school excursions and any other activities of which X is a participant, including providing each parent with access to any online ‘App’ used by the school to share information about X.
12. Both parties shall do all acts and things and sign all documents necessary to authorise any medical practitioner, specialist, orthodontist, psychologist and/or any other health professional to communicate and provide information to the other party in relation to X’s health.
13. That each party shall:
(a) Notify the other parent as soon as possible of any serious injury or illness suffered by X whilst in the care of that party;
(b) Be at liberty to attend school functions to which parents are invited;
(c) Encourage, supervise and assist with and facilitate X’s homework and additional activities such as occupational health exercises when X is in their care.
(d) That in accordance with s 106A of the Family Law Act 1975 (Cth), if either party refuses or neglects to execute a document or instrument necessary to give effect to these Orders, the Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and documents in the names of the parties and do all acts and things necessary to give validity and operation to the deed or instrument.
NOTATIONS
A. “School holiday periods” are defined as commencing upon the conclusion of the last day that X is required to attend school in the school term, and conclude at the commencement of the first day of X’s new school term that X is required to attend.
B. The parties agree to seek and consider professional guidance about preparing X for the implementation of these Orders, and for the parties to be living in different countries.
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It would however be remiss of me not to acknowledge here (as discussed throughout these reasons), that the reality of the competing proposals of the parties is that there will undoubtedly be some level of psychological harm for X, no matter how well the parents manage the eventual transition for him. Unfortunately, this is an outcome that the court is unable to prevent.The Additional ConsiderationsThe nature of the relationship of the child with each of the child’s parents other persons (including any grandparent or other relative of the child) – s 60CC(3)(b) I am satisfied from the evidence of Dr N that X has a close and loving relationship with each of his parents. Whilst it is likely that X has a familiar and warm relationship with the maternal family in Country D, and seemingly the mother’s friend Ms Q and her family, the court does not have the benefit of any expert evidence confirming or commenting on the quality of those relationships and no findings in that regard are able to be made. Rather, the strength of those relationships are assumed from the frequency X has travelled to Country D, the opinion of each of the parents and the warmth with which the maternal uncle and Ms Q spoke of the mother and X. In contrast, when regard is had to Dr N’s second report I am satisfied that X has a close and loving relationship with his sisters, Ms G and Ms F. Moreover, it is clear from the evidence of Ms G (which I accept), confirmed by the father and recorded by Dr N, that significant importance is placed by each Ms G and Ms F in nurturing, maintaining, and prioritising the sibling relationship with X. Ms G’s oral evidence in this regard was particularly compelling. Whilst I accept that Ms F and Ms G are in the early stages of adulthood and forging their own lives, I am equally satisfied that they each view X as a significant part of their lives. I am comfortable to make this finding when regard is had to the mutual evidence of the father and Ms G (also recorded at [13] in Dr N’s second report), that both Ms F and Ms G plan the time that they spend in the father’s home (at least two to three nights per week), around when X is scheduled to be in the father’s care and so as not to clash with their separate commitments, prioritising spending time with X. Moreover, I place significant weight on:(a)The positive interactions between X and his sisters as observed by Dr N,[45] which she described as “warm and familiar”;[46] and(b)Dr N’s separate view in her oral evidence that both Ms G and Ms F have “[X] high on their radar and that they try to maximise time that they spend with their father with the time [X] is with him”.[45] Report of Dr N dated 13 February 2023, paragraphs 51, 52.[46] Report of Dr N dated 13 February 2023, paragraph 53. I specifically reject as self-serving the mother’s assessment (at [77] of Dr N’s first report) that X does not have a strong relationship with his sisters; albeit I acknowledge that by the time of the second report the mother appeared to accept that X has a close relationship with both of his sisters.