SACHA & SACHA - [2020] FamCA 417

FAMILY COURT OF AUSTRALIA

SACHA & SACHA

[2020] FamCA 417

FAMILY LAW – CHILDREN – International relocation – Where the mother seeks orders providing for her to relocate the children’s residence to Country F – Where the Independent Children’s Lawyer supports the mother’s Application – Where the father opposed the mother’s Application but has disengaged from the proceedings – Where the mother has attempted to facilitate contact between the father and the children – Where the father has not spent time with the children since January 2018 – Where the extended maternal family reside in Country F – Where the mother has researched facilities available for herself and the children in Country F – Whether relocating to Country F is in the best interests of the children – Orders made in accordance with the Independent Children’s Lawyer’s Minute of Order in favour of the mother relocating with the children.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B(2), 65DAA, 65DAC.

Adamson & Adamson (2014) FLC 93-622
AMS v AIF (1999) 199 CLR 160
B & B (1997) FLC 92-755
Blinko & Blinko [2015] FamCAFC 146
Bolitho & Cohen (2005) FLC 93-224
D & SV (2003) FLC 93-137
Godfrey v Sanders (2007) FLR 287
Jurchenko & Foster (2014) FLC 93-598
Malcolm & Monroe (2011) FLC 93-460
Mazorski v Albright (2007) 37 Fam LR 518
Oswald & Karrington (2016) FLC 93-726
Re: TC and JC (Children: Relocation) [2013] EWHC 292
Sampson & Hartnett (No. 10) (2007) FLC 93-350
Sayer & Radcliffe (2012) 48 Fam LR 298
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
Walker & Walker [2013] FCWA 85
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Sacha

RESPONDENT:

Ms Sacha

INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall Lawyers

FILE NUMBER:

SYC

1281

2017

DATE DELIVERED:

28 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

14 May 2020

REPRESENTATION

NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT.

THE RESPONDENT APPEARING IN PERSON.

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kathryn Renshall Lawyers Pty Ltd

Orders

That all previous parenting Orders be discharged.
That Ms Sacha (“the mother”) have sole parental responsibility for X born … 2013 and Y born … 2015 (collectively referred to as “the children”).
That the children live with the mother.
That, within 28 days of the date of these Orders, the mother be permitted to permanently depart the Commonwealth of Australia and internationally relocate with the children to live in Country F.
That the names of the children are to be removed from the Family Law Watchlist.
The mother is to provide a copy of these Orders to any school which the children may, from time to time, attend.
That the children spend time with the father as agreed between the parties and failing agreement, that for the first Saturday of each month after the mother and the children have relocated to Country F, the mother shall initiate a Skype/video call to the father at 8.00am (Country F Time) for the purpose of the children having electronic communication with the father.
That no less than four (4) times a calendar year, the mother shall provide an email to the father in relation to the following:
(a)The children’s welfare, including medical/health issues, whether previously existing or newly arising, together with copies of any medical reports;
(b)The children’s education, including any reports or recommendations/advice from the children’s school;
(c)Any other relevant information in relation to the children’s development;
(d)A current photograph of the children.
That the mother shall, as soon as practicable, inform the father, either by email or text message, of any serious illness or injury sustained by any of the children and further provide any particulars of treatment received with the name and address of the treatment provider and/or location at which the child is a patient.
To the extent that it may be necessary, the mother has leave to provide a copy of these orders and accompanying reasons for judgment to any Australian or Country F’s Government Agency that may be concerned with the entitlement of the mother to travel with the children and/or for the mother to receive benefits and assistance in respect to the children and to assist the mother in discharging her responsibilities as the children’s primary carer.

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 Sacha & Sacha 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 1281 of 2017

Mr Sacha

Applicant

And

Ms Sacha

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter, the Court is required to determine parenting arrangements that are in the best interests of X born in 2013 and Y born in 2015 (collectively referred to as “the children”). X and Y are the children of Mr Sacha (“the father”) and Ms Sacha (“the mother”). The issue of greatest significance before me concerns the mother’s Application to relocate with the children to Country F.
As a result of the father disengaging from these proceedings, the matter has been heard on an undefended basis. The Court has, however, had the benefit of a Family Report prepared by Family Consultant, Ms B, dated 18 June 2019.

Background

The evidence of the mother was unchallenged and, to the extent that I find the mother’s evidence to be relevant and plausible, it is, by way of summary, as follows.
In 1973, the mother was born. She is currently aged 46 years.
In 1976, the father was born. He is currently aged 44 years.
In November 2010, the parties commenced cohabitation.
In 2013, X was born. He is currently aged six (6) years.
From April 2014 until May 2015, while the mother worked three (3) days per week, the father was responsible for minding X from the morning until 4.00 pm. In June 2015, this arrangement then increased to five (5) days per week until the mother went on maternity leave.
The mother states that, during the course of the parties’ relationship, the father monopolised the use of the mother’s vehicle and, accordingly, it was often necessary for her to use public transport when she had the care of X, and later Y, as well as to travel to and from her workplace.
The mother contends that, throughout their relationship, the father demonstrated a propensity to become easily frustrated and aggressive. This includes by engaging in an aggressive exchange with another driver following a minor traffic incident in the presence of the mother and X in October 2014.
In May 2015, while heavily pregnant with the parties’ second child and while holding X, the mother tripped on an item of packaging lying on the floor. The mother contends that the father failed to show appropriate empathy for her plight and, instead, raised his voice while demanding that she hand X to him.
In 2015, Y was born. She is currently aged four (4) years.
Following the birth of the parties’ second child, the mother took six (6) months of maternity leave from her full-time employment, but undertook some work on weekends, as well as other managerial and administrative tasks, for a business that was jointly operated by the parties.
In mid-2015, the father commenced employment on Friday nights and weekends and the mother assumed responsibility for caring for the children at those times.
The mother contends that the father became increasingly prone to mood swings and aggressive outbursts. During the period of their relationship, the mother contends that the father would engage in coercive and controlling conduct, including requiring her to sleep in a small bedroom, restricting the television programs that she was able to watch, and also restricting the music that the mother was able to listen to.
In or about July 2015, the mother attests that it was necessary for her to take Y to see a doctor and that while she was leaving the house with Y in her arms she sought the father’s assistance to put on a jacket before leaving the home into the cold weather. The mother contends that, in the process of assisting the mother, the father aggressively pulled her left arm into an uncomfortable position, causing her pain. This is in circumstances where, according to the mother, the father weighed approximately 140 kg in 2016 and she weighed 64 kg.
In February 2016, the mother returned to full-time employment and the father cared for the children between approximately 7.00 am and 4.30 pm. The mother then looked after the children from 4.30 pm until bedtime. Y slept with mother at night time for a period of time when the mother was nursing her.
The mother contends that, during those periods that he cared for the children, the father did not adequately attend to the children’s personal hygiene needs, such as brushing their teeth. The mother further contends that the father did not properly attend to the children’s nutritional needs. The mother’s contentions in that respect have not been relevant to the decision that I have made in this matter.
The mother further contends that the father did not adopt appropriate parenting strategies in dealing with X’s challenging behaviour and would tend to yell at X to get his attention. In that respect, the mother contends that the father was reluctant to recognise that X suffered from developmental delays that required professional assistance, including speech pathology.
The mother also attests to the father objecting to the children being vaccinated. Accordingly, the parties were unable to afford childcare as a result of being ineligible for the relevant government rebate.
The mother describes further incidents which demonstrate that the father has a tendency to engage in acts of aggressive, coercive and controlling behaviour during the parties’ relationship and subsequent to their separation, including the following:
·In June 2016, the father yelled and threw his car keys at the mother when she objected to him driving without a driver licence;
·In October 2016, while the parties were at their business, the father pulled kitchen cupboard doors off their hinges in response to the mother placing child locks on those doors;
·In mid-October 2017, at a changeover of the children from spending time with the father to the care of the mother, the father aggressively asserted, in the presence of the children, that the mother was stalking the father when the children were spending time with him;
·On 30 October 2017, when X was scheduled to have autism spectrum disorder-testing at the C Hospital, the father called the mother “a fucking psychopath”, resulting in the mother requesting, from an employee of the hospital, to conduct the test without the father’s presence; and
·At approximately 8.10 am on 6 November 2017, at a changeover that was to occur with the children moving from the father’s care to that of the mother, the mother contends that, following a heated exchange between the parties, the father refused to permit the children to move to her care and said to her, “Move out my way! Your [sic] fucking psycho! You're a fucking whore.” The mother contends that he said that while holding up his middle finger and then smiled at her.
In December 2016, the mother states that the father displayed “erratic behaviour, including calling [her] with fabricated stories”. The mother attests that, on 15 December 2016, the father took himself out of contact with the mother after informing her that he had left the children with a friend of his whom the father identified as “Mr D”. The mother attests to not having been introduced to Mr D and not knowing his capacity to care for the children in the absence of the father.
On 16 December 2016, the mother contends that the parties separated on a final basis.
The mother attests to the father remaining out of contact with her and the children until 17 December 2016, when she received a phone call during the course of which the father advised that he was prepared to work on his relationship with the mother.
On 18 December 2016, the father posted the following note on Facebook, marked annexure C to the mother’s Affidavit, which read, “Thank you guys was a great journey. I loved you all.” The mother attests to being concerned about the father’s welfare in those circumstances.
On or about 21 December 2016, the mother states that the father arrived home, indicating a desire to spend time with the children.
From December 2016 until March 2017, the children lived with the mother. The mother arranged childcare via online agencies to provide in-home care for the children while she was at work during the week. On weekends, the mother cared for the children.
The mother states that, following the parties’ separation, she offered opportunities for the father to spend time with the children but that he often failed to show up at the appointed times. The mother was not challenged on her evidence that the time that the children spent with the father was “sporadic and ad hoc”. In that respect, the mother contends that those times usually occurred on weekends and in circumstances where the father would frequently only provide two (2) hours’ notice before wishing to spend time with the children.
The mother attests that, in the period subsequent to the commencement of proceedings by the father in February 2017, the parties reached agreement, on 30 March 2017, in respect to interim parenting Orders.
The mother states that at changeovers, despite the existence of consent Orders, the father “refused to engage” with her in respect to matters relating to the care of the children, including in respect to matters such as what they had eaten during the period of time that they had spent with the father. The mother further contended that the father was not as diligent as he should have been in respect to attending to the children’s needs, including dressing the children in weather-appropriate clothing.
The mother attests that, on 3 January 2018, the father advised her that he was moving but did not respond to the mother’s request for the father to notify her where he intended to move to. Instead, on 5 January 2018, according to the mother, the father stated to her, “See you in August maybe”.
The mother attests that, in the period immediately after 5 January 2018, she sent numerous emails to the father and regularly made Skype calls to him but they have remained unanswered by the father. The mother further attests to delivering the children to the designated changeover location on 12 and 17 January 2018 but the father did not arrived to collect the children.
On 6 February 2018, the matter was listed before then Judge Harper of the Federal Circuit Court of Australia. The father was represented on that day by his solicitor but the father did not attend. The parties entered into further consent interim Orders which, by way of summary, varied the previous Orders made on 30 March 2017 by giving the mother sole parental responsibility for the children and providing for the children to live with the mother and spend time with the father upon the father giving 28 days’ written notice.
On 29 August 2018, a further mention occurred before Judge Harper in circumstances where the father had not spent time with the children since January 2018 and had filed a Notice of Discontinuance in June 2018. The father attended Court on this occasion. On that day, the matter was transferred to the Family Court of Australia upon the mother’s indication that she wished to make an application for relocation with the children to Country F.
The mother provides evidence of her compliance with the Orders made in February 2018, including emails sent monthly to the father providing updates in respect to the children’s welfare and attaching recent photographs.
Other than attending a Family Court observation with the Family Consultant in April 2019, the children have not had interaction with their father in the period from January 2018 to the present. The mother attests that this includes either spending face-to-face time with the father or communicating with him by way of phone, Skype, email, or other means. The mother attests that this is in circumstances where, at all times, she has been prepared to facilitate the children spending time with the father.
In her Affidavit, the mother also provides information concerning the current circumstances of the children and her plans in the event that the Court approves her relocation to Country F. I will subsequently set out relevant aspects of that evidence.

Applications

Orders sought by the mother

The mother seeks that orders be made in accordance with her Response to Initiating Application filed 10 October 2018 as follows:
1. That all prior Parenting Orders be discharged.
2. That the Mother have sole parental responsibility for the children X born … 2013 and Y born … 2015 ( collectively “the Children”).
3. That the Children live with the Mother.
4. That within 28 days of the date of these Orders, the Mother be permitted to permanently depart the Commonwealth of Australia and internationally relocate with the Children to Country F.
5. That for the purposes of Order 4 herein, the names of the Children are to be removed forthwith from the Family Law Watchlist.
6. That the Mother be permitted to travel internationally with the Children at any other time when they are in her care.
7. That the Mother be permitted to make a sole application for Australian and Country F Passports for the Children or replacement or renewal of these Passports as applicable and that the Mother retain possession of these Passports at all times.
8. That the Father be injuncted and restrained from applying for Country A Passports for the Children.
9. That the Children spend time with the Father as agreed between the parties.
10. That each Saturday commencing on the first Saturday after the Mother and the Children have relocated to Country F, the Mother will initiate a Skype/Video call to the Father at 8:00am (Country F time) for the purposes of the Children having electronic communication with the Father.
11. That once per month, the Mother will provide an email to the Father in relation to the Children’s:
(a) Welfare including medical/health issues whether previously existing or newly arising, including copies of any medical reports;
(b) Education, including any reports or recommendations/advice from the Children’s re-school/school;
(c) Any other relevant information in relation to the Children’s development
(d) A current photograph of the Children.
12. That in the event that either party defaults in any obligation arising pursuant to these Orders, the Registrar of the Family Court of Australia is hereby appointed pursuant to Section 106A, Family Law Act 1975 (Cth) to do any act or thing necessary to give effect to these Orders in substitution of the defaulting party.

Orders sought by the Independent Children’s Lawyer

The orders sought by the Independent Children’s Lawyer, as set out in the Proposed Minute of Orders provided to the Court on 13 May 2020, largely reflect the orders sought by the mother. Nevertheless, for ease of reference, those proposed orders are as follows:
1. That all previous parenting Orders be discharged.
2. That the Mother have sole parental responsibility for X born in 2013 and Y born in 2015 (“the children”).
3. That the children live with the Mother.
4. That within 28 days of the date of these Orders, the Mother be permitted to permanently depart the Commonwealth of Australia and internationally relocate with the children to live in Country F.
5. That the names of the children are to be removed from the Family Law Watchlist.
6. The Mother is to provide a copy of these Orders to any school which the children may from time to time attend.
7. That the children spend time with the Father as agreed between the parties.
8. Failing agreement, that for the first Saturday of each month after the Mother and the children have relocated to Country F, the Mother will initiate a Skype/Video call to the Father at 8:00am (Country F Time) for the purposes of the children having electronic communication with the Father.
9. That no less than four times a calendar year, the Mother will provide an email to the Father in relation to the following:-
a. The children’s welfare including medical/health issues whether previously existing or newly arising, including copies of any medical reports;
b. The children’s education, including any reports or recommendations/advice from the children’s school;
c. Any other relevant information in relation to the children’s development;
d. A current photograph of the children.
10. That the Mother shall as soon as practicable inform the Father either by email or text message of any serious illness or injury sustained by one of the children and further provide any particulars of treatment received with the name and address of the treatment provider and/or location at which the child is a patient.

Evidence

The mother relied upon the following documents:
a)Response to Initiating Application filed 10 October 2018; and
b)Affidavit of the mother filed 1 May 2020.
The Independent Children’s Lawyer relied upon the following documents:
a)Family Report by Ms B dated 18 June 2019.

The Law - Concepts and Principles

Parenting proceedings involving relocation

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 [2016] FamCAFC 90, 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 [(2002) 211 CLR 238 at [92]]:
...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.
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.[1]
[1]AMS v AIF (1999) 199 CLR 160, 191.
In that context, in Adamson & Adamson (2014) FLC 93-622 at 79,700 [65]-[66], the Full Court said:
It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
(Emphasis in original)
In U v U (2002) 211 CLR 238 (“U v U”) at 278 [144], Kirby J said that to require the party seeking to relocate to show “compelling” reasons “stacks the cards unfairly against the custodial/residence parent”.^[2]
[2] Noting that Kirby J was in the minority, but the statement was adopted by the Full Court in Jurchenko & Foster (2014) FLC 93-598 at 79,415 [100].
More generally, 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 this matter. In Walker & Walker [2013] FCWA 85, 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.
Those objects referred to by Thackray CJ are set out in s 60B of the Act. Of further relevance are the principles set out in s 60B(2), which relevantly include that:
(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).
Other sections of the Act which are of relevance include:
·Section 60CA, which provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration;
·Section 64B(2), which provides that a parenting order may include orders about the person or persons with whom a child is to live, the time a child is to spend with another person, the allocation of parental responsibility for a child and the communication a child is to have with another person or persons;
·Section 61DA(1), which provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for him or her. The presumption however may be rebutted if:
oThere are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of a child), has engaged in abuse (61DA(2)(a)) or family violence (61DA (2)(b)); or
oEvidence is presented which satisfies the Court that it would not be in the best interests of the child for the presumption to be applied (61DA(3));
·Section 60CC(2), which sets out the primary considerations in determining what is in the child’s best interests. Those primary considerations are:
oThe benefit to the child of having a meaningful relationship with both of the child’s parents (60CC(2)(a)); and
oThe need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (60CC(2)(b));
·Section 60CC(2A), which directs the Court to give greater weight to the consideration set out in s 60CC(2)(b); and
·Section 60CC(3), which sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed in greater detail below. They can conveniently be grouped under the following topics:
i.Issues relating to the children – their views, level of maturity, culture and relationships;
ii.Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;
iii.Issues of family violence;
iv.Effect of change;
v.Practical difficulty of implementation of orders; and
vi.Avoiding further proceedings;
vii.Other relevant matters.
By their very nature, cases where there is a proposed relocation of a child’s residence away from one parent raises challenges in respect to the time the child is then able to spend with that non-resident parent.

Paramountcy principle and rights and interests of the parties

The best interests of the child are the paramount consideration in this matter but are not the sole consideration. The Court also needs to take into consideration the circumstances of the parties. In undertaking that exercise, I must also take into account the right of the parties to choose where they would like to live.
The failure to do so may constitute a serious injustice. This is particularly so for the parent with whom the child spends the greatest amount of time and for the parent with whom the child has the closest bond. In that context, in U v U (supra), at 278 [142], Kirby J observed:
The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband’s whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court[3] and courts in other jurisdictions,[4] significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
[3] AMS v AIF (1999) 199 CLR 160, 208 [145].
[4] Poel v Poel [1970] 1 WLR 1469, 1473 per Winn LJ; sub nom P v P [1970] 3 All ER 659, 662; Burns v Burns (2000) 182 NSR (2d) 101, 113 [36] citing Wall v Wall (1997) 163 NSR (2d) 81.
In terms of the potential impact on the child, in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”), Kirby J further observed at [145]:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves,[5] to control their own future destinies[6] and, where desired, to form new relationships,[7] free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child.[8] This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.[9]
[5] In the Marriage of Cullen (1981) FLC 91-113, 76,848.
[6] In the Marriage of Craven (1976) FLC 90-049; Poel v Poel [1970] 1 WLR 1469; P v P [1970] 3 All ER 659.
[7]In the Marriage of I and I (1995) FLC 92-604, 82,025.
[8] Poel v Poel [1970] 1 WLR 1469, 1473; P v P [1970] 3 All ER 659, 662.
[9] In the Marriage of Holmes (1988) FLC 91-918, 76,664; B & B (1997) FLC 92-755, 84,197. Most earlier authority was addressed to the correct question: see Re Davis & Councillor (1981) 7 Fam LR 619; Thorpe v McCosker (1983) 8 Fam LR 964.
The Full Court in Bolitho & Cohen (2005) FLC 93-224 confirmed, at 79,699 [72], that the proper approach to be adopted in relocation cases, as held by the High Court in U v U (supra), involves:
…weighing of competing proposals, having regard to relevant [s 60CC(3)] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
In summary, the authorities confirm that cases involving an application for a child to permanently relocate to another city should not be classified as a discrete type of parenting case. The focus, or as Kirby J described, the “touchstone” throughout the proceedings must be on the best interests of the child. However, the circumstances of the parties, including their right of freedom of movement, are a relevant consideration. Moreover, the authorities recognise that, whether or not a parent is permitted to relocate in accordance with their wish, may have a significant impact on the parties’ future relationship as well as their individual happiness and sense of well-being. These matters may, in turn, impact upon the best interests of the child.

Approach

In Sayer & Radcliffe (2012) 48 Fam LR 298 at [48], the Full Court said:
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider thecompeting proposalsof both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
However, the Court is not bound by those proposals in determining what is in the child’s best interests.[10]
[10]U v U (2002) 211 CLR 238, 260 [80].
In terms of approach, in Malcolm & Monroe (2011) FLC 93-460 at 85,515, the Full Court said:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
(Emphasis added)
In Re: TC and JC (Children: Relocation) [2013] EWHC 292 at [11], Mostyn J stated that one of the important considerations in respect to an application for relocation is for the Court to assess whether “the application [is] realistically founded on practical proposals both well researched and investigated”. For reasons which I subsequently set out in some detail, I am satisfied the mother has undertaken that exercise in this case.

The parties’ competing proposals

As a result of the father disengaging from these proceedings, it has only been possible to consider the mother’s proposals. These, essentially, provide for either the children to remain living in Australia in their current circumstances, which includes the fact that they have not seen their father other than on one occasion since January 2018, or the mother to move to Country F with the children.
Despite the fact that this matter is undefended, the mother’s proposals, nonetheless, require careful consideration. In that respect, in U v U (supra) at 248 to 249, Gaudron J said:
Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.[11]…
The trial judge’s failure to separately evaluate the three proposals and, hence, to properly determine what was in N’s best interests was almost certainly the result of his Honour’s erroneous understanding of the counsellor’s statement that “[i]deally, [N’s] best interests would be served by her having frequent and liberal contact with both parents”. Clearly, his Honour understood the statement to mean that such contact was more important than any other consideration. It may be that a finding that frequent contact with both parents was more important than any other matter could properly have been made by the trial judge but, if so, it could only be made by separately evaluating each of the proposals.
[11] (1999) 199 CLR 160, 191 [95] per Gaudron J, 226 [196] per Kirby J, 232 [218]-[219] per Hayne J.
While Gaudron J was in the minority in terms of the outcome in U v U (supra), significantly, in Jurchenko & Foster (2014) FLC 93-598 (“Jurchenko”) at 79,421 [127], the Full Court commented that her Honour’s observations were “not only a perceptive statement of the forensic realities but also an accurate statement of the required approach to cases where one parent wishes to ‘relocate’”.
The mother has provided the following evidence in respect to her proposals for the children in the event that the court accedes to her application to relocate to Country F.
The mother’s evidence is that housing costs in Country F are comparable to those in Sydney. The mother attests to owning a small apartment in City BB but she plans to sell that apartment and purchase a house which she anticipates would cost approximately $300,000. She attests to her mother being prepared to assist her, financially, in financing the difference between what the mother receives from selling her apartment and the cost of the new house. That assistance will be either by way of a guarantee or direct loan.
The mother proposes that the home that she purchases will be approximately one (1) hours’ travel from City BB and located in the CC Area which the mother attests provides “all necessities regarding shopping, services, health care, specialist services, schools, universities, recreational facilities including pool and waterpark, gymnastics and horse-riding, skiing facilities, significant cultural heritage”. The mother further attests to the area having “amazing nature and hiking opportunities all year around”. The mother has also researched sporting facilities, including opportunities for her son, who, as I have noted, experiences developmental challenges, to engage in sport both at a local and elite level.
The mother further attests to the Country F government providing assistance for children to attend early childhood education and that X will be able to access an Independent Educational Plan, which, according to the mother, “is provided in a similar system as in NSW. Based on his assessment reports and diagnoses, goals and resources will be allocated to him”. That plan will be developed with the assistance from relevant government agencies.

The mother has researched the facilities available for children with special needs who she states are integrated into government mainstream schools with appropriate assistance.
In the case of Y, the mother attests that she will also have the right to attend early childhood education at a location close to her residential address.
Upon her research, the mother has found that the school-age in Country F is six (6) years and that the children will be able to attend an appropriate school close to her residence.
The mother attests that, as citizens of Country F, she and the children will be able to access universal health care provided by the Country F government. This includes the provision of assistance to meet the special needs of X.
In terms of financial support available for the children, the mother notes that, since separation, she has not received any periodic child support from the father. As a result, according to the mother, she has had to meet all accommodation, living, clothing, recreational and extracurricular expenses for herself and the children.
The mother has also researched employment opportunities in Country F in her field of allied health. The mother attests to standards in Country F being comparable to those in Australia and she is confident that she will obtain appropriate employment at a rate of salary commensurate to that which she receives in Australia.
Further to her qualifications in the area of allied health, the mother is a qualified educator and has undertaken additional studies in Country F. In that respect, the mother attests to having completed four (4) years of full-time study at the W University and one (1) year at the U University. As a result of that training, the mother believes, in my view, on reasonable grounds, that she has additional career opportunities in that area.
The mother has also researched standard working hours in Country F and the availability of holidays. The mother attests to those conditions being slightly more generous than they are in Australia and believes that this will make life a little easier for her as the full-time carer of the two (2) children. In that respect, the mother attests to researching that single parents with a child having disabilities are entitled to additional leave, including to attend medical appointments with their child or to take carer’s leave in the event of their child being ill.
The mother attests to researching and ascertaining that the cost of childcare in Country F is heavily subsidised and is approximately 30% of the cost of childcare in Australia. At annexure “S” to her Affidavit, the mother attaches information concerning the Country F National Insurance Scheme which confirms the availability of universal healthcare, including assistance provided to meet the particular needs of X. In that respect, the mother attests that both children have a National Registry Identification Number. The mother attests to children under the age of 16 years receiving free healthcare in Country F.
The mother has researched and ascertained that Country F also has a program for those with a disability and has satisfied herself that X will be able to access assistance similar to that which he receives through the NDIS program in Australia.
In addition to assistance that the mother and children will be entitled to through government agencies, the mother attests that the children have established a good relationship with their maternal grandmother, whom the children refer to as “Mum”. The children have regular contact with their maternal grandmother and that communication occurs through FaceTime and Skype.
The mother contends that Y is looking forward to re-establishing relationships with her extended maternal family, however, at this stage, X does not understand the concept of countries or engaging in long-distance travel. Nonetheless, X has, along with his sister, expressed enthusiasm at the prospect of engaging in cold-weather sporting activities.
The mother also states that her brother, Mr G, and his wife, Ms H, have two (2) children, Z and Q, and that she is confident that the children will establish close relations with their cousins who live in the same area as the children’s maternal grandmother. This is in circumstances where the mother will live in the neighbouring municipality which has more affordable housing.
The children’s maternal grandfather, Mr J, unfortunately passed away in early 2015, however, the children’s maternal uncle, Mr K, and their aunt, Ms L, live in M Town on the south coast of Country F. They have three (3) children who the mother anticipates will also establish close relationships with the children.
The mother further attests that her eldest cousin, Ms N, and her husband, Mr P, have two sons, R who is three (3) years old and S who is two (2) years old, and twin girls born in 2020, T and V.
The children have been maintaining contact with their cousins over Facebook and the mother looks forward to the opportunity for the children to establish close connections with their cousins and also with another two (2) cousins that the mother has, Mr O and Ms E.
The mother is satisfied that the children will benefit from the opportunity to establish close relationships with members of the broader maternal family as well as to experience their cultural heritage, including experiencing the food, music and history of Country F, as well as increasing their language proficiency.

Presumption of equal shared parental responsibility

Section 61DA(1) of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC(2) and (3) provides that, in the event of an order being made for the parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.

The mother has exercised sole parental responsibility for the children since consent Orders were made in the Federal Circuit Court of Australia on 5 February 2018. In circumstances where the children have not spent time with the father since January 2018, I am satisfied that it is appropriate for the mother to continue to exercise sole parental responsibility.
As an order for equal shared parental responsibility will not be made, it is unnecessary for the Court to apply the pathway set out in s 65DAA of the Act. That is, the Court is not obliged to consider making an order for the children to spend equal time or substantial and significant time with the father. Rather, the task before the Court is to make orders that are in the best interests of the children in the circumstances presented to the Court.

Section 60CC(2) primary considerations

Meaningful relationship

As noted by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 (“Mazorski v Albright”) at 526 and endorsed by the Full Court in Blinko & Blinko [2015] FamCAFC 146 at [29], “the word ‘meaningful’ [as used in s 60CC(2)(a)] is a qualitative adjective, not a strictly quantitative one”.
In Sigley v Evor (2011) 44 Fam LR 439, the Full Court provided guidance in considering the concept of a “meaningful relationship”. Relevantly, for the purpose of these proceedings, the Full Court cited Brown J’s observation in Mazorski v Albright (supra) that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.[12] The Full Court further noted the statement of Kay J in Godfrey v Sanders (2007) FLR 287 that the Act “aspires to promote… a meaningful relationship, not an optimal relationship”.[13]
[12]Sigley v Evor (2011) 44 Fam LR 439, 463 [132] citing Mazorski v Albright (2007) 37 Fam LR 518, 536 [26].
[13]Sigley v Evor (2011) 44 Fam LR 439, 464 [136] citing Godfrey v Sanders (2007) 208 FLR 287, 298 [36].
In this matter, I accept the submission of the Independent Children’s Lawyer that the children will benefit from having a meaningful relationship with both parents, subject to any risk of harm. Regrettably, as a result of the father disengaging from these proceedings and the children not having spent time with the father since January 2018, the children’s relationship with their father has inevitably suffered.
There is no indication, however, that, if orders were made that require the mother to continue to live in Australia with the children, their relationship with their father would improve and develop. The evidence points to the contrary. That is, despite the mother’s endeavours to facilitate the children spending time with the father, the same has not been reciprocated by the father. There is no indication that situation will change in the future. This is in circumstances where the father has not requested any information about the children since September 2018.

Unacceptable risk

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother’s unchallenged evidence was that the father has engaged in controlling and coercive behaviour during the course of their relationship. In respect to the exchanges which I have outlined by way of summary above, regrettably, it appears that the children have been a witness to aggressive conduct on the part of the father towards the mother, including shouting, using offensive language and making offensive gestures.
There is no indication, however, that the father has engaged in physically aggressive conduct towards the children. I am satisfied that, in the event of orders being made as sought by either the mother or the Independent Children’s Lawyer, the children would not be exposed to an unacceptable risk of suffering from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

Section 60CC(3) additional considerations

Issues relating to the children – Their views, level of maturity, culture and relationships

Any views expressed by the child

Section 60CC(3)(a) of the Act requires the Court to have regard to 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.
I accept and agree with the submissions of the Independent Children’s Lawyer that, due to X’s behavioural difficulties associated with the child having been diagnosed with autism spectrum disorder level 3, intellectual disability and global developmental delay, as well as him being non-verbal,[14] I do not give weight to his views. In that respect, the mother attested that X does not comprehend the concept of different countries nor does he understand the significance of engaging in significant travel to the mother’s homeland of Country F.[15]
[14] Affidavit of the mother filed 1 May 2020 at paragraph 88.
[15] Affidavit of the mother filed 1 May 2020 at paragraph 140.
I further accept and agree with the submissions of the Independent Children’s Lawyer that Y is too young to provide her views. However, I note the mother’s evidence that Y looks forward to re-establishing relationships with members of the mother’s broader maternal family whom she regularly contacts via Skype and Facebook.

The nature of the relationship of the child with each of the child’s parents and other persons

Section 60CC(3)(b) of the Act requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relatives of the child.
In her Affidavit filed 1 May 2020, the mother set out, in some detail, the role that both herself and the father have, in the past, played in caring for and nurturing the children. In that respect, the mother accepted that, other than during times that she was on maternity leave, in circumstances where she was the primary income earner of the family, the father cared for the children during those hours that the mother was at work.
The father’s role in caring for the children is, however, now of historical relevance to the extent that the father has not seen the children since January 2018 save to the extent that he attended a consultation with the Family Consultant, in April 2019, for the preparation of a family report in respect to these proceedings. As noted, the father has not sought information regarding the children since September 2018. In those circumstances, the children have not had the opportunity to develop a close relationship with the father in the period since January 2018.

The maturity, sex, lifestyle and background of the child and either of the child’s parents

Section 60CC(3)(g) of the Act requires the Court to consider the maturity, sex, lifestyle and background, including culture and traditions, of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
X has been diagnosed as being on the autistic spectrum and as having an intellectual disability. The mother’s account of the challenges faced by X was summarised by the Family Report writer as follows:
[The mother] said that X seems to enjoy his special school and that he usually seems happy to attend. She said that he is a loving and affectionate child with age-appropriate gross motor skills. In other areas, however, X is considered to have moderate delays and quite high needs. [The mother] said that X's speech is very limited and only consists of about 12 words. She said that he is still in full-time nappies although he does, at times, use a toilet. She said that X is generally well-behaved although he does have tantrums and, also, a tendency to run away. She said that he receives support through the national disability system.
That summary was consistent with the evidence provided by the mother in her Affidavit.
In respect to the children, the Family Report writer, Ms B, observed:
X presented as a sociable child, who greeted those around him in a friendly, albeit repetitive, way. He seemed comfortable separating from [the mother] to spend time in child care and quickly absorbed himself in play. Overall, X seemed to cope well with the transitions between the assessment activities.
74. On the second appointment, X arrived in a distressed state and was crying loudly and saying, “No!” which was in direct contrast to his previously happy, cooperative demeanour. [The mother] said that X had been unhappy about returning to the Registry for another appointment. X did not want to attend childcare so [the mother] looked after the children in a separate room. After a few minutes, X seemed calmer and happy to go with the Family Consultant (and Y) to another playroom.
75. X impressed as responsive to his parents and to the other adults around him. While he tended to be absorbed in his own activities, he also took an interest in what Y was doing.
76. Y presented as a shy, cautious child, who struggled a little with being separated from her mother when it was time to remain in childcare. She responded to attempts to engage her in play, but asked after [the mother] a few times while the latter was engaged in interviews. She seemed to cope reasonably well with the observation sessions, but tired quite easily and became distressed near the end of the first day of appointments.
77. On a later date, Y still seemed wary, but was calmer and better able to cope with separating from [the mother] to go with the Family Consultant (and X). She presented as quite playful and responsive towards both her parents, and as drawing on her mother’s support when she needed to be comforted.

The culture of the child if the child is Aboriginal or a Torres Strait Islander

Section 60CC(3)(h) of the Act requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander. This consideration is not relevant.

Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility

Long term decision-making, time and communication

Section 60CC(3)(c) of the Act requires the Court to consider 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, to spend time with the child, and to communicate with the child.
As previously noted, the father has not spent time with the children since January 2018, not requested information in respect of the children since September 2018 and has not had any form of interaction with the children since May 2019.

The parent’s obligations to maintain the child

Section 60CC(3)(ca) of the Act requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
As I have set out earlier, the mother has been the children’s primary carer since their births and, since January 2018, has been their sole carer. Admirably, the mother has attended to all the children’s physical needs, including by solely being responsible for meeting expenses relating to housing, clothing, food, education and sporting and extracurricular activities. The mother has not received any financial support from the father to meet those responsibilities since the parties separated.

The capacity of each of the child’s parents

Section 60CC(3)(f) of the Act requires the Court to consider the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
As earlier set out, the mother has admirably demonstrated a capacity to provide for the needs of the children, including by attending to their emotional and intellectual needs. This has, also, consisted of coping with any additional challenges associated with assisting X to progress, despite his developmental and behavioural challenges.
The mother has received no support from the father in discharging those vitally important responsibilities since January 2018.
The mother has admirably researched facilities that are available to assist her and the children when they arrive in Country F, including services that will be available to assist X with any difficulties that he may face. I am satisfied that those services are comparable to the services that are available in Australia. In addition, I am satisfied that the mother will receive assistance and support from members of her broader family. This will make life a little easier for the mother in caring for the children as a single mother, including providing the support required by X.

Attitude and parental responsibility

Section 60CC(3)(i) of the Act requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.
I respectfully agree with the Independent Children’s Lawyer that the mother has clearly demonstrated that she is devoted to the children and admirably discharges her responsibilities as the children’s mother.
The father, has not, however, demonstrated a commitment to his responsibilities as a father in the period subsequent to January 2018.

Issues of family violence

Any family violence involving a child or a member of the child’s family and whether any family violence order has or continues to apply

Section 60CC(3)(j) of the Act requires the Court to consider any family violence involving a child or a member of the child’s family. Further, Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.
I have previously set out the mother’s allegations in respect to the father engaging in controlling and coercive conduct during the course of their relationship that satisfies the definition of family violence set out in s 4AB of the Act.
At paragraph 93 of her Family Report, the Family Consultant, Ms B, reported:
[The father] and [the mother] have each reported a difficult, combative relationship. [The mother] has made serious allegations of family violence and poor impulse control by [the father]. If [the mother’s] claims are found to be correct, it is highly likely that the children have experienced some trauma and that their impressions of their father, at these times, would have been frightening and disturbing. [The mother] also seems very wary of [the father] and to find him unpredictable; it would be likely that the children would sense [the mother’s] negative feelings about [the father] and that this may also affect their perceptions of him.
Based on the unchallenged evidence of the mother, I am satisfied that the children were witnesses to some of that conduct on the part of the father, however, there is no evidence that children have been physically harmed. In circumstances where the children have not seen their father since January 2018, they have not been subject to tensions that have occurred on several occasions at the point of changeover. In the event that orders are made for the mother to relocate with the children to Country F, the children would not be exposed to manifestations of conflict between the parents, including, potentially, at changeover.
In those circumstances, I respectfully, again, agree with the submission of the Independent Children’s Lawyer that the issue of family violence is not a relevant consideration in this matter.

Effect of change

Section 60CC(3)(d) of the Act requires the Court to consider 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, any other child or other person, including any grandparent or other relative, with whom the child has been living.
Ordinarily, an order permitting a parent to relocate to a foreign country with the children of a relationship would effect a significant change in the children’s relationship with the non-travelling parent. However, that is not the situation in this case as the children have not spent time with the father since January 2018 save for attending a brief interview session with the Family Consultant in April 2019. In those circumstances, orders permitting the mother to relocate with the children to Country F will not bring about a significant change in the children’s relationship with their father. It will, essentially, be a continuation of the current situation where they do not spend time or communicate with the father.
More generally, however, I accept that orders permitting the mother to relocate to Country F will effect significant change in the children’s lives, including leaving friends and institutions that they have formed a bond with in Australia. Nevertheless, the mother has conscientiously researched opportunities that will be available for the children in Country F, including the opportunity to re-establish close bonds with members of the mother’s broader family.
I am satisfied that the children are at an age where they will be able to, with relative ease, fit into life in the new country. In that respect, I note the mother’s evidence that Y has learnt Country F and will have the capacity to communicate with friends and relatives when she arrives in Country F.

Practical difficulty of implementation

Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
I note and agree with the observations of the Independent Children’s Lawyer that the father has not elected to maintain any relationship with the children since April 2019, when he attended a Court-ordered interview with the Family Consultant, and the father has also not sought any information in relation to them since September 2018.
The mother has indicated a preparedness to provide information to the father concerning the welfare and activities of the children provided that she is informed of the father’s whereabouts.

Avoiding further proceedings

Section 60CC(3)(l) of the Act requires the Court to consider 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.
This is not a relevant consideration in this matter as the father has disengaged from these proceedings.

Other relevant matters

Section 60CC(3)(m) of the Act requires the Court to consider any other facts or circumstances the Court considers relevant.
In Oswald & Karrington (2016) FLC 93-726 at [17] (“Oswald”), the Full Court, applying D & SV (2003) FLC 93-137 and Sampson & Hartnett (No. 10) (2007) FLC 93-350, stated:
...there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
In Oswald (supra), the trial judge was satisfied that, on the facts of that case, the mother had a “real need for emotional support”.[16] In those circumstances, the Full Court held that “it was incumbent upon the trial judge to explore and consider alternatives to the coercive order requiring the mother to live in the Town C region away from the supports and stability she had achieved living in Town B”.[17]
[16](2016) FLC 93-726, [22].
[17] Ibid [23].
In this matter, the mother has been the subject of controlling and coercive conduct on the part of the father during the course of the parties’ relationship. Being subject to such conduct would, undoubtedly, be emotionally distressing and justifies the mother seeking support from members of her broader family. More significantly in this matter, however, is the benefit to the children, in particular, X, as a result of the fact that the mother will, in Country F, be able to access financial, emotional and physical support from members of her broader family.
In the circumstances of this case, I respectfully agree and accept the submissions of the Independent Children’s Lawyer that the advantages of the mother relocating to Country F with the children include the fact that:
2.1. The Mother would have support from her extended family;
2.2. The Mother can provide financially for the children in Country F;
2.3. The Mother can provide for the children’s education and, in particular, X’s medical needs; …
Further, I am satisfied that, at a personal level, the mother would benefit from the support she would receive in Country F and, in that respect, I note that, at paragraph 104 of her Family Report, the Family Consultant stated:
While [the mother] has not emphasised the benefits that relocating to Country F would have for her own well-being, this is also an important and valid consideration. If the move to Country F reduces the stress of caring for two young children, and provides [the mother] with increased practical and emotional supports, this would probably enhance her parental role and the children’s experiences.
While it is to be acknowledged that an order permitting the mother to relocate to Country F would make it unlikely that the children would, in the future, re-establish a close relationship with the father, I further agree and accept the submission of the Independent Children’s Lawyer that the mother has demonstrated that she can keep the father informed as to the children’s progress and that she would allow time, such as through Skype, if the father is willing to engage in that form of communication with the children.

Possibility of the father’s relocation.

In U v U (supra) at [175], Hayne J, with the concurrence of Gleeson CJ and McHugh J, said:
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India.
Similarly, in U v U (supra) at [35], Gaudron J said:
…it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility ... seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not.
There is, however, in this case, no basis upon which it could be assumed that the father would contemplate relocating to Country F to be closer to the children. Accordingly, in this matter I have dismissed the possibility of that prospect as a consideration.

Orders

For all of the above reasons, I am satisfied that it is in the best interests of the children that orders are made permitting the mother to relocate to Country F with the children. The mother agrees that, in the event that such an order is made, the orders proposed by the Independent Children’s Lawyer best effect that outcome.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 28 May 2020.

Associate:

Date: 28 May 2020