Ryland and Crittenden
[2017] FamCA 1104
•22 December 2017
FAMILY COURT OF AUSTRALIA
| RYLAND & CRITTENDEN | [2017] FamCA 1104 |
| FAMILY LAW – CHILDREN – RELOCATION – Where the mother sought orders to relocate to the United Kingdom with the child – Where the father opposed the child relocating to the United Kingdom on the basis that it would adversely impact upon the child having a meaningful relationship with him – Where the mother has been the primary carer of the child – Where the mother was born in the UK and the father was born in Country C – Consideration of section 60CC factors – Unacceptable risk – Where the parties have a history of poor communication – Where the father has been verbally abusive towards the mother via text and email communications – Where the mother has suffered from mental health problems in Australia – Court finds that the parties should have equal shared parental responsibility of the child – Court finds that the mother would have greater support if she was to relocate to the United Kingdom – Court finds that there is no significant impediment to the father also relocating to the United Kingdom – Orders made permitting the mother to relocate with the child to the United Kingdom. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Burns v Burns (2000) 182 NSR (2d) 101 Cowley & Mendoza (2010) 43 Fam LR 436 Champness & Hanson (2009) FLC 93-407 In the Marriage of Cullen (1981) FLC 91-113 In the Marriage of Craven (1976) FLC 90-049 In the Marriage of Holmes (1988) FLC 91-918 In the Marriage of I and I (1995) FLC 92-604 Johnson and Page (2007) FLC 93-344 KAC v DJC [2013] EWHC 292 KB & TC [2005] FamCA 458 M v M (1988) 166 CLR 69 Malcolm & Monroe and Anor (2011) FLC 93-460 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mazorski v Albright (2008) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 N and S and the Separate Representative (1996) FLC 92-655 Re Davis & Councillor (1981) 7 Fam LR 619 Sampson and Hartnett (No 10) (2007) FLC 93-350 Sayer & Radcliffe and Anor (2012) 48 Fam LR 298 Sealey & Archer [2008] FamCAFC 142. Sigley & Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Thorpe v McCosker (1983) 8 Fam LR 964 Taylor & Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238 Wall v Wall (1997) 163 NSR (2d) 81 Zahawi & Rayne [2016] FamCAFC 90 | ||
| APPLICANT: | Ms Ryland | |
| RESPONDENT: | Mr Crittenden |
| FILE NUMBER: | SYC | 3425 | of | 2014 |
| DATE DELIVERED: | 22 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 14, 15, 16 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie |
| SOLICITOR FOR THE APPLICANT: | KD Holmes Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: | Patrick Lim & Associates |
Orders
THE COURT ORDERS THAT:
That the parties have equal shared parental responsibility for the child, B born … 2013 (“the child”).
That the child live with the mother.
That the mother be permitted to relocate the child’s residence to the United Kingdom.
That pending the child relocating to the United Kingdom, the child spend time with the father as follows:
4.1 Each Tuesday from 4.00pm to 7.00pm.
4.2 Each Sunday from 9.00am to 7.00pm.
That upon the child relocating with the mother to the United Kingdom:
5.1 Until the child attains the age of 8 years, that the child spend time with the father in Australia as follows:
5.1.1 In the event the child moves to the United Kingdom on or before 28 February 2018, during the 2018 United Kingdom summer holiday period, for 3 blocks of 3 nights with a 2 night break in between each block, on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel, that he has secured accommodation resided in by only himself and any partner of his.
5.1.2 During the 2018/2019 Australian summer holiday period for 4 blocks of 4 days with a 2 day break in between each block (including Christmas Day), on the condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel, that he has secured accommodation resided in by only himself and any partner of his.
5.1.3 Thereafter, each year during the United Kingdom summer holiday period for 4 blocks of 4 days with a 2 day break in between each block, on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel that he has secured accommodation resided in by only himself and any partner of his.
5.1.4 That in the event the father does not provide confirmation of his accommodation pursuant to 5.1.1 or 5.1.2 or 5.1.3 above, then the periods of time the child spends with him be day time periods from 9.00am to 7.00pm or such other times as agreed between the parties.
5.2 That upon the child attaining the age of 8 years, the child spend time with the father, in Australia, during the United Kingdom summer holidays each year for a block period of 4 weeks.
5.3 That the child spend time with the father in the United Kingdom as follows:
5.3.1 In the town in which the child lives at times to be agreed between the mother and father or, failing agreement:
5.3.1.1 on dates proposed by the father in writing at least 3 months in advance and provided that such dates do not coincide with school days once the child is of school age;
5.3.1.2 from 9.00am until 7.00pm on any 5 days (whether consecutive or non-consecutive) on up to 3 separate occasions each calendar year.
5.3.2 Such further or other time with the father in the United Kingdom or in Country C on terms as may be agreed between the parties from time to time.
5.4 The child communicate with the father via Skype or similar electronic communication each Saturday at 8.00pm (Australian Eastern time), or on such other regular day each week as may be agreed in writing between the parties from time to time in view of the child’s extracurricular activities or commitments after day care, pre-school or school as the case may be, with the father to initiate the call and the mother to ensure that the child is available to take the call.
5.5 The mother will facilitate any reasonable request by the child to have additional Skype time or other communication with the father.
That the mother be responsible for and will pay for the costs of the child’s return air travel between the United Kingdom and Australia up to and including the United Kingdom summer holidays in 2022 and that thereafter the parties share equally in the child’s return air travel.
The father may send cards, gifts and letters to the child and the mother will pass on to the child any cards, gifts and letters received from the father and addressed to the child.
That upon the child relocating to the United Kingdom:
8.1 The mother will forthwith do all things necessary to set up capacity for the child to communicate with the father by Skype.
8.2 The mother will take all reasonable steps to make contact by telephone with the child’s paternal grandfather and invite him to meet the child.
That the mother and the father will keep each other informed of:
9.1 Their current contact telephone number, Skype contact details, email and residential address, and any changes to these details.
9.2 Any significant injury or illness suffered by the child and any treatment or attention given to the child in relation to any health problems the child may have from time to time.
9.3 All school, extra-curricular and sporting activities in which the child is involved.
That the father will be entitled to receive copies of all school reports and applications for school photographs from the child’s school and the mother will show or provide a copy of these orders to the principal of any school attended by the child and authorise the principal of the school to facilitate the implementation of this order.
That in the event that the child’s school is not in a position to facilitate the implementation of order 10 above in favour of the father, the mother will provide a copy of each of the child’s school reports within 14 days of each report being issued to the mother. Further, the mother will forward a copy of the child’s school photograph each year if the father cannot obtain a copy directly from the school under order 10 above.
That each party is restrained from making derogatory, disparaging and offensive statements about the other parent in the presence or hearing of the child.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ryland & Crittendon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3425 of 2014
| Ms Ryland |
Applicant
And
| Mr Crittenden |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting arrangements for a four year old child, B who was born in Sydney in 2013. The child lives with her mother, Ms Ryland but spends time with her father Mr Crittenden each Tuesday from after day care until approximately 7:00pm, and each Sunday from 9:00am to approximately 7:00pm.
The issue of greatest controversy is whether the mother should be able to permanently relocate the residence of the child to the United Kingdom. The mother contends that such orders are necessary because, as a single mother, she needs additional assistance to cope with her responsibilities as a parent and those related to her employment. The mother contends that the pressure of coping with those dual responsibilities is such that it has adversely impacted upon her mental health. The mother contends that if she is permitted to relocate the child to the United Kingdom she will be assisted by the support of family and friends. This, the mother contends, will be in the best interests of the child.
The mother’s application is opposed by the father on the basis that the child’s relocation will adversely impact upon the child’s relationship with him. This, he contends, is contrary to the child’s long-term interests.
Contextual facts
The mother was born in the UK in 1975. She is now 42 years of age. The father was born in Country C in 1970. The father is now 47 years of age.
The mother is employed as a manager with DPLC which is a company with business interests in a number of countries, including the United Kingdom. She has worked with that company since December 2015. She currently works four days per week. The mother has held similar positions with other companies since January 2003.
The mother currently resides with the child in a two-bedroom, two bathroom unit that she owns and which is located at Suburb E in Sydney.
The father is a tradesman who works in the construction industry. He has lived in Australia since 1996.
In 2000 the mother moved to Australia and was granted Australian Citizenship in 2005.
In January 2011 the mother and father commenced an on-again off-again relationship.
In June 2011 the parties commenced cohabitation in the father’s rental property at F Street, Suburb G.
In August 2011 the mother purchased her current home at H Street, Suburb E (“the Suburb E property”). The property was initially tenanted and the mother did not move into the property until February 2012.
In August 2011 an incident occurred between the parties during the course of which the mother threw a beer bottle at the father. The mother was charged with assault and an application for an Apprehended Domestic Violence Order was made against her naming the father as the protected person. The assault charge was later dropped and the application for the ADVO was withdrawn.
In October 2011 the father was charged with possession of a controlled substance, that substance being cocaine.
In February 2012 the mother moved into the Suburb E property (where she and the child continue to reside). In May 2012 the parties separated for a second time.
In early June 2012 the mother ascertained that she was pregnant and shortly thereafter the parties resumed their relationship.
During the course of her pregnancy the mother consulted a psychologist at Suburb G.
In early 2013 B was born in Sydney. The child is currently aged four. Following the child’s birth the mother took maternity leave until mid-November 2013. The father also took time off work. The father asserts that it was for a period of two weeks but the mother asserts that it was for only one week. The mother contends that the father continued to reside at the Suburb E property until late April 2013 and thereafter lived with herself and the child intermittently.
The mother continued to breastfeed the child until approximately June 2013. The parties dispute the extent to which the father contributed to the care of the child in the three month period that he lived in the Suburb E property.
Shortly after her birth, the child was diagnosed as having a silent reflux problem. This resulted in her having a disturbed sleep pattern. In late April 2013 the mother’s mother (the maternal grandmother) travelled from the UK to Australia to assist her in caring for the child. The maternal grandmother stayed with the mother a period of approximately four weeks.
In or about May 2013 an incident occurred at the Suburb E property in which the father took offence at how he was being treated by the maternal grandmother and this resulted in an exchange of words between the father, the maternal grandmother and finally the mother. The parties dispute the events. However, it is acknowledged that the exchanges resulted in the father leaving the Suburb E property. The father acknowledges that he ceased residing at the Suburb E property during the period that the maternal grandmother was living there.
From mid May 2013 to mid-June 2013 the father spent intermittent time at the mother’s Suburb E property and from June 2013 to August 2013 the child’s time with the father occurred on an ad hoc basis.
In mid-2013 the father, the mother and the child travelled to Region K for the mother’s birthday. The parties separated on a final basis during the course of that weekend.
The mother contends that, after the parties separated, until 12 August 2013, “the child spent time with the father on an ad hoc basis largely as requested by the father. The frequency of time was about a couple of times per week, most often at my Suburb E home when the father came over for a couple of hours after he finished work”.[1] The father acknowledges that he spent limited time with the child during this period and that time occurred on an ad hoc basis. The father contends however, that this was the result of unreasonable conditions imposed by the mother.
[1] Affidavit of the Mother filed 30 June 2017 at [36].
In June/July 2013 the mother proposed that the parties enter into a parenting plan in order to regularise the parenting arrangement between them. The mother also requested the father to commence paying child support. The father responded by way of text messages in which he stated “I don’t want to go through formal channels” and “I’m not going to get a whole lot of things as I might be leaving Australia anyway”.[2]
[2] Ibid at [40].
In July 2013 the father informed the mother that he had signed a lease for a rental property at L Street, Suburb G, which he intended to rent with his friend Mr M. The father has subsequently moved into that property with Mr M.
Also in July 2013 the mother indicated to the father that she would like to travel to the UK for a holiday before she returned to work. The parties had a discussion which included the prospect of the father potentially travelling to Country C and the mother potentially taking the child to Country C so that she could meet the father’s family. The father subsequently signed the Passport application.
On 12 August 2013 the mother booked flights, including flights for the father, on her credit card. The parties discussed the mother taking the child to Country C for a week. The father proposed that the mother stay with members of his family however, the mother contended that arrangement was inappropriate. The mother further asserted that the child was too young to be out of her care for an overnight period. The parties continued to discuss possible arrangements between 13 August 2013 and 20 August 2013 however they were unable to resolve areas of disagreement between them.
On 14 August 2013 the mother advised the father that she had cancelled the bookings she had made for him to travel to the United Kingdom as he had not reimbursed her for the cost. The mother advised the father that she intended however, to travel to the United Kingdom with the child during the month of September. In text messages sent to the mother following that communication the father stated:
On 15 August 2013 at 8.00am:
I am going to WA for a while, I want to see my daughter before I go, and you can get your cot.
On 16 August 2013 at 8.11 pm:
Fat mamma, I want to see the child before I go. Tee it up as I'm sure you don't want me banging on your door in the early hours of the morning. I will see my daughter before go!
On 16 August 2013:
Your [sic] one crazy bitch - you'll raise her on your own.
From 18 to 19 August 2013 the mother received 28 text messages from the father. The messages included the following:
My daughter [the child] will be all mine very soon bitch. I believe the gates of hell are opened again, waiting for your return you evil bitch!” Go on little piggy, let me see her before I go!
A father that can’t even see his own daughter, and a mother who is clinically insane. What chance in life has the child got? Your not punishing me, your harming your daughter.
On 20 August 2013 the mother sent the father the following text message:
[The child] and I have gone to the UK back end of September I’ve booked mediation for 4 October if you’re interested.
The father responded:
You bitch your [sic] as evil as your mother. All in [the child’s] best interest, bollocks. I won’t be in Sydney when you return, so you can shove your mediation up your fat ass.
The father asserts that about a week after the mother cancelled the plans for the parties to jointly travel to the United Kingdom, the father received a text message from the mother, while she was on the plane to the United Kingdom advising him that she and the child were about to depart for City N. The father acknowledges he was upset when the mother sent him the text message advising him that she and the child were on their way to the United Kingdom.
On 21 August 2013 the father sent the mother an email:
Please forward me the address of where you’ll be staying with the child until the end of September!
The mother responded:
I will be at [O Street, Suburb P] arriving back in Sydney 29th September and booked mediation to commence 4th October if you would like to be part of it so that a parenting plan can be put in place.
On 22 August 2013, the father sent the mother an email “It’s too late for your parenting plan [Ms Ryland]. I won’t be around after these antics when you return to Auz. She is all yours”. The father asserts this message was sent in frustration due to his difficulties in spending time with the child and communicating with the mother. The mother sent further message:
I told you I was going on holiday not sure what you mean by antics, if you don’t want any part of [the child’s] life that’s your choice, if you don’t want to be part of her life then I will look into getting her surname changed to mine.
On 22 August 2013 the father sent the mother an email stating “Change her name keep her in the UK and take my name off her birth cert. You’ve now heard it from me I’ll have nothing to do with her after this. This is the straw that broke the camel’s back. Enjoy your holiday!”
On 27 August 2013 the mother received a Facebook message from Ms Q (the father’s brother’s partner) who informed the mother that the father was in Country C.
From 2 to 3 September 2013 there was an exchange of emails between the parties which included the mother confirming she would bring the child to Country C if the father covered the cost. The father declined on the basis that he was not prepared to pay for the accommodation. As an alternative the father proposed that the mother stay with his relatives. The father asserts that “the mother did not follow through with this arrangement, and communication between the parties broke down”. Ultimately, the child did not go to spend time with the father or his family in Country C.
On 5 September 2013 the father messaged the mother to indicate that he was thinking of coming to the UK and inquired whether it would it be possible for him to see the child. The mother agreed that she would facilitate that occurring.
On 10 September 2013 the father sent an email saying “I won’t be going to [City N] now”.
On 27 September 2013 the father sent an email to the mother saying “How long til ye both get back down under”. The mother responded saying “I get back on 1st of October when are you going back”. The father responded “I’m not”.
On 2 October 2013 the father sent an email stating “Have you thought about moving back to [the UK] yet?”. The mother replied same day “No why”. The father again responded:
I was just wondering! As you know I’ve not being [sic] in a happy place in Australia for a very long time, between my mum passing, so far away from home and family. What goes on between you and I is very aggressive. Just feel my life has come to a dead end in Australia. It’s not a happy place for me anymore. I’ve been on edge and its affecting me on a day to day basis. I was just thinking your mother would (I’m not having a go at her) have asked you back to [the UK] to live by now.
The mother responded “So are you coming back here or not bothering”.
On 3 October 2013, the father sent a message to the mother “I don’t have a return ticket, thinking about [South America]. One of my best mates has just left for 12 months. I’m not in a good place at the moment and Sydney’s not going to fix that for me”.
On 3 October 2013, the mother sent the father an email about the topic of moving back to the UK, which included words to the effect “…I have to do what’s best for [the child] and also how feasible it is to do my work with a child. What I’m saying is if it gets too much then maybe I will consider moving but that’s a long way off yet”.
On 4 October 2013, the mother attended R Group in Sydney, having provided them with the father’s email address. The father complained that the mother organised this knowing the father was overseas.
On 4 October 2013, the mother received an email from the father saying “Thanks for giving them my email, I bet you forgot to tell them I wasn’t living in Sydney!! You’re a callous pice [sic] of junk”.
On 4 October 2013, the father sent a subsequent email “Sorry about the previous email, there was a couple of miss spelling’s [sic] that I’d like to rectify. Pice was supposed to spell piece and junk was supposed to spell shit! Keep pushing x”.
On 4 October 2013, the mother sent the father email “Mediation is so a parenting plan can be put in place …”. The father responded “I’m in fucking [City N] now you nutcase, still no ticket or plan to return to Australia did you mention that ballbags?? NO!”.
Between 9 and 19 October 2013, the parties exchanged emails and photos of the child and the father asked to see her.
On 19 October 2013, the mother advised the father that she was looking at options for the care of the child. She stated that she was not sure how feasible it would be to continue in her employment as well as look after the child.
On 20 October 2013, the father sent the mother an email saying he was planning to be passing through Sydney on his way home from Country C, could he see “the little one”. The mother responded “That’s fine”.
On 20 October 2013, the father sent an email to the mother saying “I’m not staying in Auz, just passing through, tying up loose ends, that’s all would be nice to see the little one while I’m back. I think your [sic] the biggest b_ _h I’ve ever come across in my life, so I think I’ve a better chance of seeing the child in a high street in [South America] than [Country C]”.
Between 24 October 2013 to 4 November 2013, the father spent time with the child in Australia, the mother was present on a few occasions; otherwise the father had the opportunity to take the child for brief walks.
On 29 October 2013 the maternal grandmother arrived from the UK to assist the mother in the child’s care. She remained in Australia until 18 December 2013.
During October and into November 2013, the parties engaged in communication regarding the mother’s request for the parties to enter into a parenting plan. The father was not comfortable about that proposal and on 10 November 2013 sent the mother a text message stating:
I won't be living in a Sydney by the end of March, so a parenting plan is a waste of time to you and I. And it's a waste of time and energy to people I know that are separated and have children. All I wanted was to spend time with your daughter till then. Your mother arrived, and that went ass over tit. Coincidence or not, that happened. Can you not see that!
In a further email sent on the 10 November 2013 the father inquired:
What kind of plan do you wish to put in place? I’ll be gone for 20 days over Christmas/new year, and gone for good by the end of March. You've no idea, what your doing will have a lasting effect on your baby, think hard about that [Ms Ryland].
In mid-November 2013, the mother returned to work at the conclusion of her maternity leave.
Between July to December 2013, the father spent time with the child on an ad hoc basis.
On 8 December 2013, the parties exchanged messages about the child spending time with the father. The mother requested that the father obtain provisions for the child including obtaining a pram. The father responded “I’ll never, NEVER buy or own a pram. That’s a woman’s thing to own or, whatever the hell you do with them. One thing for certain I’ll never buy or own a pram. I was offered one two weeks ago. Guess what, I didn’t want it. I know you’re surprised, but as I said earlier me owning a pram will never happen …”. It appears, however that the child having a year’s growth provided an incentive for the father to accept the mother’s offer to provide him with a spare pram in December 2014.
On 9 December 2013, the mother instructed her solicitors to write to the father about parenting arrangements.
On 18 December 2013, the maternal grandmother left Australia.
In January 2014, the father left a voicemail message asking to spend time with the child on her birthday. This was facilitated by the mother.
Between January 2014 and mid-March 2014, the child’s time with the father occurred on an ad hoc basis. This was usually a couple of times a week for an hour or two at the mother’s home or in a public place such as Suburb S. The mother was usually present.
On 4 January 2014, the father sent the mother an email “[Ms Ryland], this is ridiculous, you not allowing me to see [the child]. How much damage do you want to do to your little girl. I’m paying, maintenance and I want to see her!”
On 5 January 2014, the mother sent an email “[Mr Crittenden] I’m back at work so again a plan needs to be put in place. I’m not stopping you see [the child] you just need provisions and a plan in place as per the letter you got from my solicitor”.
On 14 January 2014, the maternal grandmother returned to Australia and remained in Australia until 9 April 2014.
In early 2014, the parties spent time with the child on her birthday at the father’s home from 12.30pm to 2.00pm.
In the period subsequent to the mother’s return to Australia on 1 October 2013, the child continued to see the father on an ad hoc basis. This caused frustration to both parties and was the subject of a number of email and text exchanges between them. An example of that tension is reflected in the following email exchange that occurred on 13 March 2014:
Father:
Are you going to let me have [the child] tomorrow?
Mother:
Yes - I was just trying to say that we need to work as a bit of a team and I am more than happy to take some time off when she is sick but we both have a responsibility to [the child] and I'm hoping you can do the same re: some of the time - I have a conference in June and I'm hoping you can help me out then.
Father;
I know your always well planned ahead, which is great if one can do that. I'm not, I'm unemployed, van goes back today, I've no transport, I'm looking for a job and your asking me to take time of in June from a job I don't have. I'm not having a go here, but look at it from my point of view, just for two minutes. I'll see you in the morning, thanks!
Mother:
I understand you're looking for a job [Mr Crittenden] and I hope you get one ASAP [the child] is my priority and I need to know she will be looked after when my work requires me to attend a meeting - if you can't commit to these type of things then I need to rethink my work and living arrangement - if it were me I would tell any prospective employer that I had a child and I may need to take time off for them - I'll see you in the morning.
Father:
Construction does not work that way, it's not and will never be family orientated. It's pointless even talking about this at the moment.
On 30 March 2014, the parties exchanged further texts with a view to resolving future care arrangements for the child.
Between April 2014 to May 2014, the child spent time with the father on an ad hoc basis.
On 24 May 2014, the mother said to the father words to the effect “without support in Australia I am unable to sustain a satisfactory standard of living this will impact on me and ultimately the child”. Following the discussion about the prospect of the mother returning with the child to the United Kingdom an incident occurred between the parties which resulted in police intervention at the request of the mother.
On 25 May 2014, a provisional ex parte Apprehended Violence Order was made against the father.
On 27 May 2014, the solicitors for the mother wrote to the father informing him of the mother’s desire to relocate to the UK. The reasons advanced in that letter were as follows:
We are instructed that [Ms Ryland] had a conversation with you before the middle of last month in which she expressed her wish to move back home to the United Kingdom with the child because she has family supports there and she will be better able to provide for the child during the current pre-school years and in the longer term.
On 5 June 2014, the mother filed her Initiating Application.
On 11 June 2014, the mother’s solicitors wrote to the father again seeking to make defined arrangements for the child to spend time with him.
On 30 June 2014, the maternal grandmother returned to Australia for a period of three months to assist the mother with the child’s care.
In July 2014, the mother obtained a referral from her General Practitioner to Dr T, Psychiatrist.
On 20 July 2014, the mother received a text message from the father seeking to spend time with the child and she replied by asking him to liaise with her lawyer and providing him with contact details.
In the period from 20 July 2014 until late November 2014, an exchange of correspondence occurred between the mother’s solicitors and the father’s solicitors in respect to arrangements for the child to spend time with the father. One of the mother’s concerns was that the father did not have appropriate transport and in particular her belief that the father did not drive a properly maintained vehicle with a properly fitted baby capsule in it.
On 7 August 2014, a Final Apprehended Violence Order was made naming the mother as the protected person. The order was made by consent on a without admissions basis and was for a period of 12 months.
Between August 2014 and December 2014, the mother’s solicitors and father engaged in correspondence about arrangements for the child. The father asserts the mother put unnecessary conditions on the father spending time with the child. The mother asserts she proposed appropriate child focussed arrangements including that the father agree to specific times and that he have the capacity to safely transport the child in an appropriate vehicle with a child seat.
In September 2014, the mother commenced seeing Dr T. The mother has continued to consult Dr T.
In late November 2014, the father commenced to spend time with the child in accordance with the Consent Orders which were later made.
On 1 December 2014, Consent Orders were made for the child to spend graduated increasing amounts of time with the father. Those orders relevantly provided:
1.That the child, [B] born … 2013 ("the child") live with the Mother
2. That the child spend time with the Father as follows:
2.1. For a period of three weeks commencing 4 November 2014 at [U Group], [Suburb V] as follows:
2.1.1. Each Tuesday from 4pm to 5pm; and
2.1.2. Each Thursday from 4pm to 5pm.
2.2. Thereafter, for a period of three months:
2.2.1 . Each Tuesday from 4.00pm to 6.30pm; and
2.2.2. Each Sunday from 3.00pm to 6.30pm.
2.3. Thereafter as follows:
2.3.1. Each Tuesday from 4.00pm to 6.30pm; and
2.3.2. Each Sunday from 9.00am to 5.00pm.
3. That [the child's] time with [the father] pursuant to clause 2.2 is conditional upon your client providing our client with evidence of the purchase of an appropriate car seat and evidence that this car seat has been fitted to the vehicle in his possession by an appropriately qualified fitter.
4. That the parties be restrained by injunction from drinking alcohol to excess for 12 hours prior to or during periods the child is in his/her care.
On 10 December 2014, the mother sent the father an email offering additional time over the holiday period. The father accepted the offer for time on Christmas Day but declined time on New Year’s Day.
On 5 January 2015, the maternal grandmother arrived in Australia for a period of three months to assist the mother.
On 8 February 2015, the mother delivered the child to the father’s house on her birthday. The mother says the father appeared glassy eyed and smelt strongly of alcohol and said he was taking the child to a barbeque. The father denies that he was suffering the effects of being intoxicated.
On 20 February 2015, the mother offered the father additional time on his birthday, which he accepted. The mother gave the child a small gift to give to the father.
On 1 March 2015, the mother says that the father smelt strongly of alcohol when she arrived at his home for changeover. The father denies this.
On 12 March 2015, the mother indicated she would like to take the child overseas at the time of her own 40th birthday. The father responded he was going to be in Country C at that time for his brother’s wedding. The father later indicated that the wedding was to take place on 4 July 2015.
On 5 April 2015, the mother asserts the father said to her “[Mr M] had a party at our place at 4.00 am this morning I went into the living room to tell him to be quiet I saw two bags of cocaine on the coffee table”. The mother states that she responded “[Mr Crittenden] you need to make sure your place is safe for [the child]”. The father denies that this conversation occurred.
On 26 April 2015, when the mother took the child to father’s residence she asserts that the father smelt strongly of alcohol. She states that she observed several glasses on the balcony table containing liquid that looked like beer. She states that she also saw about 40 beer bottles on the kitchen bench and pushed some away from the edge so that the child could not grab them. The mother asserts the father said to her “I went to the races yesterday”. The father disagrees with mother’s assertion of the amount of alcohol at the premises at any time.
On 26 April 2015, the father signed documents granting permission for the child to travel to overseas with the mother from 22 June to 28 June 2015.
On 29 April 2015, the father advised the mother that he was leaving his job. The parties agreed that the child would spend some additional time with him over and above the time provided in the Consent Orders. That time was to occur on Thursdays between 29 April and 11 June 2015 when the father was then to depart to Country C for his brother’s wedding.
On 10 May 2015, the father indicated he could not exercise additional time that had been agreed as he had started a new job. The parties also agreed to change father’s time from Tuesdays to Fridays to facilitate him being able to work overtime.
On 11 May 2015, the mother requested the father to care for the child as she was unwell and could not attend childcare. The father said he could not as he had to work. The mother took leave on 11 and 12 May 2015.
On 16 May 2015, the father cared for the child for two hours whilst the mother attended a 40th birthday party.
On 24 May 2015, when the mother states that, when she arrived at the father’s place of residence with the child, the father smelt strongly of alcohol and she observed beer bottles on a table. The father denies the mother’s version of events.
On 31 May 2015, the mother asserts the father said “I’d like to go work in the mines so I can save some money. I’ll pay you extra money so you can work part-time”. The father acknowledged being offered a job in the mines, but denies offering the mother any money or accepting the offer.
On 1 June 2015, the parties attended Vivid with the child at the mother’s invitation.
On 9 June 2015, the maternal grandmother arrived in Australia to assist the mother in caring for the child for the subsequent 10 weeks.
On 12 June 2015, the mother asserts the father again raised working in the mines and expressed a desire to take the child to Country C in 2016. The mother asserts that she offered to facilitate the child having skype contact with the father when he was away and that the father responded with words to the effect “Fuck the Skype”. The father says he has no recollection of this conversation.
On 14 June 2015, the mother asserts that when she left the child at the father’s home there was a six pack of beer on the floor which she asked him to move. The mother asserts the father responded “She won’t touch it - there’s often beer on the floor”. The father denies that such a conversation occurred.
On 10 July 2015, the mother offered additional time to the father to make up for the time that the father had been in Country C. This was accepted by the father.
In October/November 2015, the father assisted the mother by taking the child at 7.00am on five occasions to facilitate her work. The father informed the mother that Mr M [his flatmate] had lost his licence due to drink driving.
In November 2015, the father informed the mother that the Department of Immigration had been in touch with him for further information about his conviction for possessing a controlled substance in October 2011.
In December 2015, the mother commenced work with her current employer, DPLC.
In December 2015, the parties attended Santa’s Magical Kingdom with the child at the invitation of the mother.
On December 2015, the mother offered the father additional time on Christmas Day. The mother ultimately withdrew her offer for additional time when she became concerned that there would be adults drinking at the father’s home on that day. The father asserts he was not going to drink alcohol and the mother’s concerns were unjustified.
On 19 January 2016, the mother enquired whether father could care for the child who was unwell. The father was unable to assist due to work commitments.
On 21 January 2016, the child was unwell and the mother took her to W Hospital.
On 22 January 2016, the mother sent the father a text message advising him that the child was quite ill with bacterial pneumonia. The father expressed his appreciation at being advised.
In March 2016, the child attended the Easter Show with the parties at the invitation of the mother.
In April 2016, the parties attended Mass together with the child.
On 18 April 2016 and separately on each of the 10th, 11th and 12th May 2016, the father assisted the mother by minding the child when the mother had work commitments.
On 14 May 2016, the parties spent time with the child at Darling Harbour.
Between 18 May and 29 June 2016, the father spent additional time with the mother and the child, including attending dinners and visiting Vivid.
On the weekend of Saturday, 4 June 2016, the father spent the weekend at the mother’s home with the child.
On 13 June 2016, the father stayed overnight at the mother’s home to facilitate the mother’s study.
On 23 June 2016, the mother attended a work function in X Town, returning at 11.30pm. The father cared for the child during that period.
On 3 July 2016, the child did not spend time with the father because he was working. The mother facilitated him seeing the child after work at her home.
Between 4 and 6 July 2016, the father stayed at the mother’s home to care for the child.
On 17 July 2016, 24 July 2016, and 31 July 2016, the father did not spend time with the child because he was working. The mother facilitated him seeing the child after work at her home.
On 8 September 2016, the mother’s friend, Ms Y, cared for the child because the father was unable to assist.
In December 2016, the parties attended a Wiggles concert with the child.
On 25 December 2016, the child spent time with the father.
On 30 January 2017 the maternal grandmother arrived in Australia for six weeks.
In early 2017, the mother organised the child’s 4th birthday party. The father and 4 of his friends, including his flatmate, attended.
In March 2017, the father had an appendectomy. The mother collected him from hospital on 14 March 2017 and took him home.
On 19 March 2017, the father, who was still recovering from surgery, was unable to spend time with the child.
On 24 May 2017, the father cared for the child at the mother’s home.
On 31 May 2017, the parties attended Vivid together with the child.
On 3 June 2017, the father attended the child’s mid-term ballet concert at the mother’s invitation.
applications
The mother’s application
The Minute of Order proposed by the mother was as follows:
1. That the parties have equal shared parental responsibility for the child, [B] born … 2013 (“the child”).
2. That [the child] live with the mother.
3. That the mother be permitted to relocate [the child’s] residence to the United Kingdom.
4. That pending the child relocating to the United Kingdom, [the child] spend time with the father as follows:
4.1 Each Tuesday from 4.00pm to 7.00pm.
4.2 Each Sunday from 9.00am to 7.00pm.
5. That upon [the child] relocating with the mother to the United Kingdom:
5.1 Until [the child] attains the age of 8 years, that [the child] spend time with the father in Australia as follows:
5.1.1 In the event [the child] moves to the United Kingdom on or before 28 February 2018, during the 2018 United Kingdom summer holiday period, for 3 blocks of 3 nights with a 2 night break in between each block, on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel, that he has secured accommodation resided in by only himself and any partner of his.
5.1.2 During the 2018/2019 Australian summer holiday period for 4 blocks of 4 days with a 2 day break in between each block (including Christmas Day), on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel, that he has secured accommodation resided in by only himself and any partner of his.
5.1.3 Thereafter, each year during the United Kingdom summer holiday period for 4 blocks of 4 days with a 2 day break in between each block, on condition that the father confirms with the mother, no later than 2 calendar months prior to the proposed travel that he has secured accommodation resided in by only himself and any partner of his.
5.1.4 That in the event the father does not provide confirmation of his accommodation pursuant to 5.1.1 or 5.1.2 or 5.1.3 above, then the periods of time the child spends with him be day time periods from 9.00am to 7.00pm or such other times as agreed between the parties.
5.2 That upon [the child] attaining the age of 8 years, in Australia, during the United Kingdom summer holidays each year for a block period of 4 weeks.
5.3 That [the child] spend time with the father in the United Kingdom as follows:
5.3.1 In the town in which [the child] lives at times to be agreed between the mother and father or, failing agreement:
5.3.1.1 on dates proposed by the father in writing at least 3 months in advance and provided that such dates do not coincide with school days once [the child] is of school age;
5.3.1.2 from 9.00am until 7.00pm on any 5 days (whether consecutive or non-consecutive) on up to 3 separate occasions each calendar year.
5.3.2 Such further or other time with the father in the United Kingdom or in [Country C] on terms as may be agreed between the parties from time to time.
5.4 [The child] communicate with the father via Skype or similar electronic communication each Saturday at 8.00pm (Australian Eastern time), or on such other regular day each week as may be agreed in writing between the parties from time to time in view of [the child’s] extracurricular activities or commitments after day care, pre-school or school as the case may be, with the father to initiate the call and the mother to ensure that [the child] is available to take the call.
5.5 The mother will facilitate any reasonable request by [the child] to have additional Skype time or other communication with the father.
6. That the Mother be responsible for and will pay for the costs of [the child’s] return air travel between the United Kingdom and Australia up to and including the United Kingdom summer holidays in 2022 and that thereafter the parties share equally in [the child’s] return air travel.
7. The father may send cards, gifts and letters to [the child] and the mother will pass on to [the child] any cards, gifts and letters received from the father and addressed to [the child].
8. That upon [the child] relocating to the United Kingdom:
8.1 The mother will forthwith do all things necessary to set up capacity for [the child] to communicate with the father by Skype.
8.2 The mother will take all reasonable steps to make contact by telephone with [the child’s] paternal grandfather and invite him to meet [the child].
9. That the mother and the father will keep each other informed of:
9.1 Their current contact telephone number, Skype contact details, email and residential address, and any changes to these details.
9.2 Any significant injury or illness suffered by [the child] and any treatment or attention given to [the child] in relation to any health problems [the child] may have from time to time.
9.3 All school, extra-curricular and sporting activities in which [the child] is involved.
10. That the father will be entitled to receive copies of all school reports and applications for school photographs from [the child’s] school and the mother will show or provide a copy of these orders to the principal of any school attended by [the child] and authorise the principal of the school to facilitate the implementation of this order.
11. That in the event that [the child’s] school is not in a position to facilitate the implementation of order 10 above in favour of the father, the mother will provide a copy of each of [the child’s] school reports within 14 days of each report being issued to the mother. Further, the mother will forward a copy of [the child’s] school photograph each year if the father cannot obtain a copy directly from the school under order 10 above.
12. That each party is restrained from making derogatory, disparaging and offensive statements about the other parent in the presence or hearing of [the child].
13. That the father pay the mother’s costs of these proceedings.
The father’s application
The orders sought by the father were as follows:
1. The parents shall have equal shared parental responsibility for the child [B] ("[the child]") born … 2013 in relation to decisions concerning the child’s long-term care, welfare and development.
2. [The child] shall live with the Mother in Sydney and spend time with the Father as provided for in Order 4.
3. Each of the parties shall have sole parental responsibility for making decisions about [the child’s] day to day care, welfare and development during times [the child] lives with or spends time with that parent.
4. [The child] shall spend time with the Father as follows:
a. Every Tuesday from after day care to 7pm;
b. Alternate Saturday from 3pm to Sunday 7pm;
c. For one half of each Term 1, 2 and 3 school holiday periods, and Christmas school holiday period, with the Mother having the first half of the holiday periods in odd numbered years and the second half of the holiday period in even numbered years.
5. Upon the earlier to occur of 12 months and the Father purchasing a home, the Father shall increase his time with the child as follows:
a. Every Tuesday from after day care to 7pm;
b. Alternate weekends from Friday after day-care to Sunday 7pm (and where the Monday is a public holiday the Father’s time is to extend to 7pm on the Monday);
c. For one half of each Term 1, 2 and 3 school holiday periods, and Christmas school holiday period, with the Mother having the first half of the holiday periods in odd numbered years and the second half of the holiday period in even numbered years.
6. In the event the Mother chooses to relocate to the United Kingdom, [the child] shall live with the Father and spend time with the Mother as provided for in Order 8.
7. Each of the parties shall have sole parental responsibility for making decisions about [the child’s] day to day care, welfare and development during times [the child lives] with or spends time with that parent.
8. [The child] shall spend time and communicate with the Mother as follows:
a. For one half of each Christmas holiday period, with the Mother having the first half of the holiday periods in odd numbered years and the second half of the holiday period in even numbered years;
b. By FaceTime every Saturday and in the event that FaceTime is not working, then by Skype and/or phone; and Mother will initiate the communication with [the child];
c. There shall be a laptop connected at all times at the Father's house, and the Mother or [the child] can contact each other on an ad hoc basis during reasonable times;
d. The Father will ensure that [the child ]is available and has access to a phone or other equipment which is provided by the mother for the purpose of that communication;
e. At any other time, as may be agreed.
9. For the purposes of the Mother's time with [the child] in accordance with Order 8:
a. Unless otherwise agreed in writing, [the child] will travel to the United Kingdom where the Mother will be living;
b. The Mother will book [the child's] flights and notify the Father in writing no less than six months prior to the date of departure;
c. The Mother shall be responsible for the payment of [the child's] air tickets and any other costs associated with [the child’s] stay in the UK;
d. Unless otherwise agreed in writing, the Mother shall book a departing flight on the first Saturday following the conclusion of the school term and a returning flight for no later than the last Saturday of the school holiday period;
e) The Father will ensure [the child] is available for pickup from home 4 hours prior to departure time; if an alternative pick up place (i.e. father’s office) is specified, the father need provide at least 48 hours written notice;
f. [The child] will travel accompanied by the Mother at all times during her visits to the United Kingdom or any other destination agreed by the parties;
g. From the date of these Orders until the child turns 13 years of age, [the child] will travel accompanied by the Mother, or the Father or by an agreed third party, and upon the child turning 13 years of age, [the child] may travel as an unaccompanied minor.
10.In the event that the Mother returns to Australia to reside permanently, Orders 8 and 9 are suspended and the Mother shall spend time with [the child] as follows:
a. During school terms, from after school/day-care on Tuesday until 7:00 pm;
b. Every Sunday from 9am to 7pm;
c. After 6 months, the child will commence overnight time once a week, and this time to increase gradually, as agreed by the parties;
d. For one half of each Term 1, 2 and 3 school holiday periods and Christmas school holiday period, with the Mother having the first half of the holiday periods in odd numbered years and the second half of the holiday period in even numbered years
e. Any such other time as may be agreed between the parents in writing.
11. That upon the expiry of [the child's] current passport;
a. Either the Father or Mother can initiate the passport renew process and complete a Passport Application and send the signed document to the other parent; and
b. The other parents who received the passport application then complete the form and lodge it with the relevant office within 7 days and for this purpose, the parents will be equally responsible for the costs of renewing the passport.
12. That each parent will notify the other as soon as possible of any serious illness or injury suffered by [the child] whilst in their care and shall provide the details of the treating medical practitioner if requested.
13. That if requested by the other, each parent will notify the other of the name, address and telephone number of the child' treating doctor/s and sign any authority the other may provide to authorise that doctor in writing to release to the other particulars of the child's health or treatment at any time requested by them.
14. That each parent notify the other and keep the other notified of their residential address, a telephone number where they may be contacted in the event of an emergency and a current email address.
15. That each parent notify the other of any change to their address, contact number or email address within 3 days of such change.
16. That the parents authorise the Principal of any such school as the child may attend to provide to each of the Father and the Mother with duplicate copies of school reports, school photographs, notices of parent/teacher meetings, school assemblies, sports and swimming carnivals, school information and events, and any other school activities to which parents are invited to attend and any other correspondence or notification otherwise relevant to [the child].
17. That either parent is entitled to attend any such school as [the child] may attend for the purpose of attending at any event at which a parent is usually entitled to attend even if that event occurs outside of the time that [the child] is within that parent's care.
18. That each parent is hereby restrained from:
a. denigrating the other parent within the presence of [the child];
b. Discussing the Court proceedings with [the child], including discussing or showing [the child] any material contained within affidavits or orders sought;
19. That the Mother pay the father's costs for these proceedings.
Evidence and witnesses
The mother relied upon the following documents:
a)Initiating application filed 5 June 2014;
b)Affidavit of Ms Ryland filed 30 June 2017;
c)Affidavit of Ms Z filed 30 June 2017;
d)Affidavit of Mr AA filed 30 June 2017;
e)Affidavit of Dr T sworn 24 July 2017; and
f)Case Outline and Submissions provided to the Court on 8 and 9 August 2017.
The father relied upon the following documents:
a)Response to Initiating Application filed 11 August 2014;
b)Affidavit of Mr Crittenden filed 30 June 2017; and
c)Case Outline provided to the Court on 8 August 2017.
The Law - Concepts and Principles
Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children.
In Zahawi & Rayne,[3] the Full Court noted:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[3] [2016] FamCAFC 90; reference to U v U (2002) 211 CLR 238 at [92].
In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[4]
[4]AMS v AIF (1999) 199 CLR 160 at 191.
Parenting proceedings are to be determined in accordance with Part VII of the Act. Section 60CA of the Act makes the best interests of the child the paramount consideration. In Walker & Walker,[5] Thackray CJ said at paragraph 81:
In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests 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.
[5][2013] FCWA 85.
Those objects referred to by Thackray CJ are set out in section 60B of the Act. Of further relevance are the principles set out in section 60B(2) which relevantly include:
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 addition, in his oral evidence, the father stated that it was not pleasant working in the construction industry in the colder climate of Country C.
It is clear, however, that despite living in Australia for 21 years, the father has not always been content with that situation. In the period following the parties’ separation, the father was contemplating living in another city and, indeed, another country to the mother and the child. This includes the instances that I identify below which, in fairness to the father, should be read in the context of the totality of each communication that I have set out above.
In late June and July 2013 the father advised the mother “I might be leaving Australia anyway”.[59]
[59] Affidavit of the Mother filed 30 June 2017 at [40].
On 15 August 2013 the father advised the mother "I am going to WA for a while, I want to see my daughter before I go”.
On 2 October 2013 the father sent the mother an email asking “Have you thought about moving back to [the UK] yet?” The mother emailed a response “no why?’ To which the father replied:
I was just wondering! As you know I've not being [sic] in a happy place in Australia for a very long time, between my mum passing, so far away from home and family. What goes on between you and I. It's very aggressive. Just feel my life has come to a dead end in Australia. It's not a happy place for me anymore. I've being on edge and it's affecting me on a day to day base. I was just thinking your mother would (I'm not having a go at her) have asked you back to [the UK] to live by now.[60]
[60] Ibid at [64].
On 2 October 2013 the mother enquired of the father as to whether he intended to return to Australia and he responded on 3 October 2013 as follows:
I don't have a return ticket, thinking about [South America]. One of my best mates has just left for 12 months. I'm not in a good place at the moment and Sydney's not going to fix that for me.[61]
[61] Ibid at [65].
On 20 October 2013 the father sent an email to the mother advising that he was travelling to Sydney stating:
I'm planning to be passing by Sydney late next week, would it be ok to see the little one? Or are you going to drag me through the family courts to see her?[62]
[62] Ibid at [75].
The mother responded to that email indicating that she had no objection and inquired how long the father would be staying in Sydney to which the father responded:
I'm not staying in Auz, just passing through, tying up loose ends, that's all. Would be nice to see the little one while I'm back.[63]
[63] Ibid at [77].
On 10 November 2013 the father sent the mother a text message stating:
I won't be living in a Sydney by the end of March, so a parenting plan is a waste of time.[64]
[64] Ibid at [84].
In a further email sent on the 10 November 2013 the father inquired;
What kind of plan do you wish to put in place? I'II be gone for 20 days over Christmas/new year, and gone for good by the end of March...[65]
[65] Ibid at [85].
It is to be noted that several of the messages sent by the father were in respect to him residing in a city other than Sydney as opposed to leaving Australia. However, there were other references to the father’s desire to live in another country and it is significant that in his email, dated 2 October 2013, the father clearly expressed a desire to live closer to his home and family in Country C.
The father is currently in full-time employment. However, in the period since the parties’ separation, he has changed jobs on four occasions. It is understandable that, as the father indicated in his oral evidence, he would prefer not to undertake construction work in the cold climate of Country C. Nevertheless, the father did not suggest that obtaining such employment was beyond his capabilities.
Further, the father is not tied to Australia by property ownership and he has stated that he has saved the sum of approximately $140,000. That amount of money would assist the father relocating to Country C if he chose to do so.
In summary, while it is not the primary reason for my decision to make orders permitting the mother to relocate with the child to the United Kingdom, a relevant consideration is the fact that there is no significant impediment to the father also relocating to the United Kingdom and/or Country C. If the father made the decision to relocate he would be in much closer proximity to the child and thereby have the opportunity of spending substantial and significant time with her.
Father’s alternative proposal in the event of the mother relocating without the child.
The father has stated that, in the event of the mother relocating to the United Kingdom without the child, he would be prepared to take on the responsibility for her full-time care. In that respect the father has indicated that he would significantly adjust his employment arrangements so that he has greater flexibility in caring for the child.
However, the father’s capabilities as a parent are essentially untested and while he has relatives in Melbourne and in HH Town, there has been no evidence presented of the extent to which that familial or other support would be available to assist the father in caring for the child on a full-time basis.
The father gave evidence regarding the possibility of him moving to either Melbourne or HH Town to be closer to that familial support however, the father’s proposals in that respect have not been clearly explained and I am not satisfied that any such arrangements would be practicable.
In any event the mother, who has been and remains the child’s primary carer, has indicated that she would not relocate to the United Kingdom in the absence of the child and, in those circumstances, it is not necessary to further consider the father’s proposal for the child to live with him.
Orders
For the reasons outlined above, I will make orders which permit the mother to relocate to the United Kingdom with the child.
The orders proposed by the mother best provide a regime for that to occur while maintaining the opportunity for the child to spend time with and communicate with the father consistent with the child’s developing maturity and, thereby, continue the child’s meaningful relationship with him.
I certify that the preceding three hundred and eighty (380) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 22 December 2017.
Associate:
Date: 22 December 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Costs
-
Remedies
0
5
1