Shellard & Shellard (No 2)
[2023] FedCFamC1F 719
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shellard & Shellard (No 2) [2023] FedCFamC1F 719
File number: SYC 4814 of 2021 Judgment of: HENDERSON J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where one child lives by agreement with the mother in Country B – Where the mother seeks the youngest child relocate to Country B indefinitely – Where the Independent Children’s Lawyer seeks the child relocate for a definite period – Where the father objects to the child living in Country B for any period – Where the child is 13 years old – Where the single expert opined the child has a deep down yearning to spend a period of time living with the mother in Country B and recommended relocation for a definite period – Consideration of the child’s views – Consideration of principles relating to relocation – Finding the child has expressed clear and mature views – Significant weight given to the child’s views – Finding relocation for a definite period is an order in the child’s best interests – Orders made generally as sought by the Independent Children’s Lawyer – Costs – Where the Independent Children’s Lawyer sought the parents pay a contribution of costs – Where both parents opposed this – Orders made as sought by the Independent Children’s Lawyer – Where the mother sought the father pay a half-share of the preparation of the expert’s report – Orders made as sought by the mother. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b), 60CC(3)(b)(i), 60CC(3)(b)(ii), 60CC(3)(c), 60CC(3)(c)(i), 60CC(3)(c)(ii), 60CC(3)(c)(iii), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(d)(i), 60CC(3)(d)(ii), 60CC(3)(e), 60CC(3)(f), 60CC(3)(f)(i), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 61DA(1), 117(1), 117(2A), 117(2A)(a), 117(2A)(g).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.2, r 7.06(1).
Cases cited: Burton and Burton (1979) FLC 90-622.
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158.
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.
Lenova & Lenova [2011] FamCAFC 141.
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230.
MRR v GR (2010) 240 CLR 461; [2010] HCA 4.
Prantage & Prantage (Costs) [2014] FamCA 850.
Shellard & Shellard [2021] FedCFamC1F 216.
Zahawi & Rayne [2016] FamCAFC 90.
Division: Division 1 First Instance Number of paragraphs: 128 Date of hearing: 7–8 August 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Michael Conley Lawyers Counsel for the Independent Children’s Lawyer: Mr Ladopoulos Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
SYC 4814 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHELLARD
Applicant
AND: MS SHELLARD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to Y, born 2007, and X, born 2010, are discharged (“the children”).
Parental responsibility
2.The parents shall have equal shared parental responsibility for the children.
Live with - Y
3.Y shall live with the mother in Country B.
Spend time with - Y
4.The father shall spend time with Y in Australia from 28 December 2023 to 19 January 2024, with Y to travel to Australia.
5.The father shall spend time with Y in accordance with her wishes and the parents are to equally share the costs of Y’s travel between Country B and Australia.
Communicate with - Y
6.The parents shall communicate with Y in accordance with her wishes.
Live with - X
7.Subject to any agreement between the parents in writing, X shall live with the mother in Country B commencing 28 August 2023 until 20 July 2024 when he shall return to Australia and thereafter live with the father.
8.The mother be permitted to relocate X’s place of residence from Australia to Country B in accordance with Order 7 herein.
9.The mother shall be solely responsible for any expenses relating to her and X’s travel from Australia to Country B for the purposes of X relocating to Country B.
10.The father shall be solely responsible for any expenses relating to his and X’s travel from Country B to Australia for the purposes of X relocating to Australia.
Spend time with - X
11.Between 28 August 2023 and 20 July 2024, the father shall spend time with X as agreed in writing between the parents, and failing agreement, from 28 December 2023 to 19 January 2024, with X to travel to Australia.
12.Upon X’s return to Australia, the mother shall spend time with X in Country B:
(a)In odd numbered years, a period of three (3) weeks in the New South Wales term 4 school holidays, from the first week of the holidays;
(b)In even numbered years, a period of four (4) weeks in the New South Wales term 4 school holidays, from the second week of the holidays;
(c)In odd numbered years, a period of two (2) weeks in the New South Wales term 2 school holidays, commencing the last day of school;
(d)In even numbered years, a period of ten (10) days in the New South Wales term 2 school holidays, commencing second week of the school holidays; and
(e)As agreed in writing.
13.The mother shall spend time with X in Australia:
(a)In the event the mother elects to spend time with X in Australia in the Term 1 or Term 3 school holidays, the mother to notify the father in writing of the commencement and conclusion dates no later than 42 days prior to such time or as agreed in writing; and
(b)During the times the mother is spending time with X in Australia, the mother shall provide the father with:
(i)The particulars of the location she will be residing at; and
(ii)Contact information including a telephone number the father can reach X on.
14.The parents shall equally share the costs of X’s travel in accordance with Orders 11 and 12 herein.
Communicate with - X
15.The parents shall communicate with X in accordance with his wishes.
Airport Watchlist
16.IT IS REQUESTED that the Australian Federal Police remove the name of X, born 2010, from the Airport Watchlist at all points of international arrivals and departures in Australia.
Passports
17.To effect Order 7 herein, the mother shall have possession of X’s Australian and Country B passports, and the mother is to keep each passport safe and secure and available for use by X as and when required.
18.Upon X’s return from Country B to Australia, the father shall have possession of X’s Australian and Country B passports, and the father is to keep each passport safe and secure and available for use by X as and when required.
19.The father and the mother are to sign all documents and consents necessary to apply for a renewal of the children’s Australian and Country B passports as and when necessary.
Information sharing
20.The parents are to sign all authorities or other documents (if any) as may be required to authorise any doctor or specialist upon whom the children attend whilst in their care to forward to the other parent, at the other parent’s expense, copies of any medical reports.
21.Within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school, each parent shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the other parent copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extracurricular activities.
22.In the event of either of the children suffer a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner and/or medical facility upon which the child attends as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
23.The parents shall keep the other parent informed at all times of their current address, contact telephone number and email address and shall advise the other parent of a change in such details within 24 hours of such change occurring.
Expert report fees
24.Within 60 days of the date of these orders, the father is to pay to the mother the sum of $6,050 as reimbursement for his half-share of the costs of Mr K’s preparation of the single expert family report completed on 13 September 2022.
Costs
25.Within 60 days of the date of these orders, the father and the mother are to each pay the sum of $1,650 to the Independent Children’s Lawyer.
AND THE COURT NOTES THAT:
A.The Court encourages the parents to listen and consider X’s views during the time he is in Country B and upon his return from Country B.
B.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shellard & Shellard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
The matter of Shellard is an application concerning the parenting arrangements for the parties’ youngest child, X, born 2010. The parties have four children, Ms C and Ms D, born 2002, both now aged 21, Y, born 2007, now aged 15, and X. X is the child subject to these proceedings.
The short relevant history is as follows.
The parties married in 1999 in Country G and separated in 2013 in Country B.
The mother is a national of Country B and the father is a national of Country G. The parties and children have Country B and Australian citizenship.
In 1999, the parties moved to the United Kingdom, and then to City E, Country B in 2000. Ms C and Ms D were born in City E.
In 2005, the parties moved to Perth, where the paternal extended family reside. Y and X were born in Perth.
In total, Ms C and Ms D lived in Country B for 10 years, and Y and X for six and a-half years.
After coming to Australia in 2010, the father suffered a serious health issue and the parties moved back to Town M, Country B in 2011. This is where the mother and Y now live.
Upon their separation in 2013, the parties entered into a divorce settlement in Country B, providing for the parties to have equal shared parental responsibility, and the children live with each parent on a week-about basis during the school term and half of school holidays.
In 2017, some four years after separation, the father determined to return to Australia. Despite being separated, the mother and children returned to Australia and initially lived with the father until 2018.
The mother endeavoured to start her career again in Australia, and from mid-2018, the children primarily lived with the father and spent time with the mother as the father had more suitable accommodation than the mother.
In June 2020, the mother was assessed as having to pay child support consequent upon the father seeking an assessment.
Although the mother was renting her property in Town M in Country B, she was struggling financially in Australia. In early 2021, the mother and children had a holiday. After this holiday, Ms C, Ms D, and Y returned to the father’s care, while X stayed with the mother until mid‑2021.
In mid-2021, the mother and Y returned to Country B, and Y returning to Country B was agreed by the father. The father agreed with the mother’s position that Y had made up her mind and wanted to return to Country B, and that he would not stand in her way.
Since that time, X has spent time with the mother in Country B. However, the mother was required to seek orders that X spend time with her in Country B as the father opposed X spending any time with her in Country B in 2021, asserting that the mother should come to Australia to spend time with X.
On 22 November 2021, Christie J made orders for X to spend time with the mother in Country B, finding it was appropriate he return to Country B to spend time with the mother, in a property he had lived in at Town M, with his sister and his mother, and that issues the father raised as difficulties would be easily overcome, such as the distance she lived from City E and the like.[1] Her Honour was satisfied that it was sufficiently important for X to spend time with the mother in Country B and made orders sought by her over the father’s objections.
[1] Shellard & Shellard [2021] FedCFamC1F 216 (Christie J).
The matter before me is the mother’s application that X live with her in Country B and commence to attend school for an indefinite period. The father’s application is that X remain living in Australia and continue to spend holiday time with the mother in Country B.
The position the Independent Children’s Lawyer (“ICL”) was consistent with the clear and forceful position of Mr K, a clinical social worker and family consultant, who was the appointed single expert witness. His clear opinion was that X spend one year in Country B, to attend school, and he then return to Australia. Reading from Mr K’s report dated 13 September 2022 (“the expert report”):
98.It is recommended that [X] be allowed to relocate to live with his mother in [Country B]. It is noted that, if possible, his preference for living in [Country B] be for a trial period. It is suggested that this period be for one year and that, after that period, his views with respect to his living arrangements are further canvassed by this writer or an agreed alternative. An alternative would be for there to be an updated report at the end of this period but this would require a postponement of the proceedings and the emotional and financial cost of such proceedings would be ongoing.
(As per the original)
THE HEARING
The hearing was for two days on 7–8 August 2023.
The father represented himself, while Ms Spain of counsel represented the mother and Mr Ladopoulos of counsel represented the ICL.
Only the father, the mother, and Mr K were cross-examined.
The hearing was conducted in a polite, courteous manner, and the parents were respectful of each other, supportive of each other as the parents of their children and have a high regard for each other in that capacity. There was no issue of poor behaviour, family violence, addictions, rude or vicious written communications, and both the mother and the father said during cross‑examination that they were able to communicate well on all issues concerning their children and had no difficulty exercising equal shared parental responsibility.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For the father, as outlined in his Case Outline filed 31 July 2023:
(a)Minute of Orders sought dated 23 July 2023;
(b)Affidavit of Mr Shellard filed 3 July 2023; and
(c)A tender bundle of documents, containing text messages, and letter and email correspondence.
(2)For the mother, as outlined in her Case Outline filed 31 July 2023:
(a)Amended Response to Initiating Application filed 26 June 2023; and
(b)Affidavit of Ms Shellard filed 3 July 2023.
(3)For the ICL, as outlined in her Case Outline filed 4 August 2023, being the report of Mr K dated 13 September 2022.
Documents tendered and marked as exhibits was as follows:
(1)For the father, a letter from Services Australia to him dated 18 July 2023 titled ‘New income amount: 1 August 2023 – 31 October 2024’ (Exhibit F1);
(2)For the mother, page 25 of mother’s tender bundle, being text messages from X to the mother (Exhibit M1); and
(3)For the ICL:
(a)The report of Mr K dated 13 September 2022 (Exhibit ICL1); and
(b)Letter from the ICL to both parties dated 1 August 2023 (Exhibit ICL2).
THE ISSUES AND EVIDENCE
The issues in these proceedings were clear. The mother sought X relocate to Country B on an indefinite basis and in time for X to start the school term in early September 2023. The mother accepted that if X were at any time unhappy, expressing a strong desire to return to Australia, she would facilitate that event occurring for she did not want her son to be in a depressed state or unhappy.
The father’s evidence was the move to Country B would be exceedingly disruptive to X, citing that he is doing very well at school, he is engaged in many extracurricular activities and he is a sporty child, and he and X do sports together. Further, Ms C and Ms D live here in Australia, X would miss them and also miss his school friends. Adopting an old phrase, “if it ain’t broke, don’t fix it”.
The father’s position was that X’s expressed views to Mr K were equivocal. They did not have the same force, for example, as Y’s views expressed to him to live in Country B with the mother. He was particular clear that X never said he wanted to live in Country B permanently. Additionally, the risk of X destabilising were far greater than the benefits he would receive in living in Country B for a year or for an indefinite period.
At the hearing, the evidence of each parent was clear and they were both cognisant to ensure X is not harmed. I accept both parents would, if they believed X was suffering or expressing a strong desire to live in the other country, they would facilitate this as the father did with Y in 2021.
However, in relation to the father there are three concerns in that regard which were not present with the mother’s evidence. The first is an annexure to the father’s affidavit, which was apparently a text message sent by X on 8 June 2023:
Dear Court,
This letter is a piece of my general opinion on where I want to be. … Of course I want to live with my mother and sister, (theoretically) if we all lived in a world of fantasy … But we don’t live in a world of fantasy, and I’m a little tired (but obviously grateful to have the opportunity to travel so that I can see my family as much as possible) of being pulled back and forth just to know that I’m not going to be having the change to see both my parents equally. And I’m now a teenager, so I would like to be set somewhere comfortable not needing to worry about my future. But I guess I have to snap back to reality and do what I think is best for myself which is believing that Australia is where I’m comfortable and this will all end some day. So yeah, I’m comfortable in Australia, this is my style my brain is fully adjusted to English, I’ve got [sports], friends, a pet, I’m doing good at school and over all this is my style. And once against, I want to be with my [mother], but this is what I want. Period. But if it means that I’m going to live in [Country B] at least I know I’m in a safe and loved environment. [Country B] is great, but more of a holiday place, in my opinion there’s more to do in [Suburb L] than in [Town M] and there’s more of what I like to do. Though [Country B] does give you good options, just not as good.
So that’s my opinion, Love you [Mum and Dad], from [X].
(As per the original)
This message, assuming it was written by X, is perhaps an example of the father applying pressure to X as the final hearing approached.
The text message also demonstrates, as Mr K said, the thoughtful, intelligent and insightful young man X is. There was no doubt X is an impressive child, much loved by both parents and that he loves each of his parents.
The second concern with the father’s position was that Ms D filed an affidavit seeking to stand up and support X. Ultimately, the father withdrew that affidavit. This matter and the text message cause the Court some concern as to the father’s involvement of X in this dispute.
The third concern was raised during the father’s submissions to me, where he described X “is truly one of [his] best friends”. This concern arises as a child is not your best friend at any age as children rely on their parents to parent them before they can lead their life on their own.
These are some notes of caution. However, there were very few real concerns in this matter as to parental capacity.
X’s text message of 8 June 2023 is inconsistent with Exhibits ICL1 and ICL2.
Exhibit ICL2 is a letter from Ms Tin as the ICL to the parents in August 2023 and is as follows:
I refer to the above matter and my meeting with the children on 27 July 2023.
I advise [X] explicitly told me during our meeting “I prefer Australia as the place to live in, but I think that it would be good for me to try to live in [Country B] for a bit”.
[X] agreed for me to tell his parents and the judge his above view.
(As per the original)
These views were expressed by X in July 2023 and are entirely consistent with X’s views expressed to Mr K in 2022.
It is true, as the father submitted, X did not say, at any time, he wished to live in Country B permanently and not return to Australia, and Mr K’s report and Ms Tin’s letter are consistent with this position.
Mr K was clear in his report:
95.[X’s] expressed preference for relocating to live his mother for a trial period is (for at least in part) based on an ‘intuitive sense’ that he wants to live with his mother and he is aware that the psychosocial and emotional outcomes of his doing so are uncertain. Nevertheless, he has considered his options carefully. Given his emotional and cognitive maturity, it is appropriate, in the writer’s view, that his ‘decision’ is respected. It is noted that, having been encouraged, both by his parents and the Court system, to express his opinion, it would probably not make sense to him to now have his expressed preference overridden.
(As per the original)
Mr K initially interviewed X just after his return from Country B and then interviewed him three weeks later to allow for any yearning of Country B to settle with him. During the first interview with X, the following was elicited by Mr K:
48.… In response he said, “(I saw) family and cousins and Grandma … (had) laughs with friends … (he named four of them) … they all live in [Town M]” …
49.[X] went on to say, “I really enjoyed seeking” his maternal grandmother as well as his maternal cousins.
50.… In response he said, “I was anxious (about speaking) [Country B language] but they (friends and family) reassured me”. He added, I like [Country B] … it is very different”. [X] said he really enjoyed seeing his grandmother, his cousins. He laughed about four friends he had. That he had been anxious about speaking [Country B language] but his family reassured him and he said, “I like [Country B]. It’s very different.”
51.[X] understood the notion that thinking about whether or not he wanted to relocate to [Country B] was something like using weighing scales. In this regard he said, that he places, “family and friends over lifestyle”.
52.[X] went on to say, “my house is next to a train station” where the environment at his mother’s home is, “pure nature … when I look out of the window in [Country B] there are trees everywhere”.
(As per the original)
There is no doubt X enjoys the outdoors and the natural environment, but I make no comparison concerning the accommodation either parent provides. It is of a high standard. Mr K continues:
53.[X’s] best friend (in Sydney) is [N], who, “understands everything … he can be silly but (also) mature”. He went on to mention other friends in his group.
…
55.There are, “lots of things” that [X], “likes doing with Dad”. He said, in this regard, “I like to [do sports]… he is really fun … he was there for [other sports] …”.
56.[X] went on to say that, “with Mum it is not as goofy … we talk … dad asks me questions … it is easier talking to mum … she is quiet and calming …”.
57.With respect to his friend [N], [X] advised that he has been “a lifelong friend” and he agreed that would miss him. He indicated he has, “no other friends like [N]”.
58.[X] went on to say, “half my heart is really happy (in his current environment) but I want to be there more than being here”.
59.[X] recalled that, “it was much harder when I left [Country B] (recently)”. He went on to say, “but I think of them … and want to be with Mum”. He agreed that his feelings about his mother and sister were “strong”. He added, “I feel close to Mum”. He went on to say that he does not “prefer” one or other parent … “I love then them the same”.
X said if asked what his view was:
61. … he said that he would say that he is “close to mum … to be with Mum”.
(As per the original)
Mr K noted that neither parent cross-questioned X about his views with respect to relocating to Country B.
In the follow-up interview undertaken to ascertain whether X’s views and whether they had changed from a preferred preference to live with the mother, at least for a period, Mr K reports:
63.In this regard [X] advised that had been thinking about his decision and, although he acknowledged that the ‘decision’ was difficult, his “deep down” preference was to spend some time living with his mother. He added that there are “more opportunities” available in the context of his living in his current location in Sydney.
64.[X] advised that, “me and my mum had talked about spending one year in high school over there”. In response to the writer’s question [X] said that, “Dad asks me how I feel (about the ‘decision’). [X] indicated that he does not, in relation to the ‘decision’ feel any pressure to conform to any particular view or perspective.
65.[X] went on to say that his preference has been determined by, “needs rather than wants”. In this regard his ‘yearning’ (the writer’s word), “is not going to go away”.
66.[X] advised that his preference would be to live in [Country B], “for a trial period”. He was uncertain as to when he should move to live in [Country B] …
(As per the original)
I note that the father told Mr K at his interview that he was “open to … giving it a go”, ‘it’ being X’s preference. The father resiled from that position at the hearing and was adamant he did not want X to go to Country B for any period other than school holidays.
In his report, Mr K noted that Y was living in Country B with the mother and wanted to stay there “at the moment”. Mr K reported that Y was missing the father and her friends in Australia.
During her interview with Mr K, the mother said her proposal is for X to relocate to live with her in Country B for “at least one year”.
This was not her proposal before me. It was X living with her for an indefinite period.
The mother acknowledged to Mr K, as she did in Court before me, that X:
74.… might “want to come back (because he is also happy in Sydney)”. She went on to say, “I wouldn’t force them to stay here … I would go back if they wanted to … [Y] and [X] need to grow up together … trial it for a least a year”.
…
76.[Ms Shellard] went on to say, “the main thing is I could not afford to have both children with me (in Sydney) … here I have got a home and a family … my family is here in [Country B]” …
(As per the original)
The mother said her decision to come to Australia was “a difficult decision”.
Mr K’s evaluation of X’s views was that:
88.[X’s] expressed preference is to relocate to [Country B] to live with his mother and sister for a trial period. …
(As per the original)
The weight to be given to X’s expressed preference was a primary focus of Mr K’s evaluation. The evaluation made in 2022 was firmed up in his oral evidence and he confirmed this view should be given substantial weight. Mr K opined:
91.[X] presented as an articulate, thoughtful and emotionally intelligent young person. By way of example, his capacity to articulate and distinguish between “needs and interests” and to openly acknowledge that he will feel a sense of loss with respect to, (particularly), his father but also with respect to friends, is suggestive of emotional maturity. [X] recognises that the ‘decision’ with respect to future living arrangements is not clear cut. Importantly, he has not idealised one scenario over the other. Implicit in his preference for a ‘trial period’ in [Country B] indicated that he is realistic in his expectations.
92.[X] recognises that, when weighing up his options, that there are potential costs and benefits associated with both options. By way of example he believes that there are probably more ‘opportunities’ available to him in his current home environment and if the decision with respect to relocation were to be based on a ‘check list’ of opportunities he would probably have chosen to remain living in Sydney. He has, however, chosen to follow an inclination that is less able to be quantified and that is his ‘deep down’ feeling that he wants to live with his mother for a period.
93.[Mr Shellard] has raised the concern that [X] may have been influenced by his mother’s expressions of sadness when he is separating from her. Whilst this is probably an accurate observation, the writer is of the view that [X] misses his mother in a more profound way and his feelings in this regard reflect the warm and close relationship that he has with her. In the writer’s view [X’s] ‘deep down’ feelings will not abate until he has spent, at least, a trial period with his mother whilst he is in his early adolescence and therefore just beginning his journey towards individuation and autonomy. In the writer’s view this journey will be more complicated for him if he does not have the opportunity to reconnect with his mother in his early adolescence. Confidence in the love of an attachment figure provides a ‘safe base’ for exploration and a sense of an autonomous self. It is noted that [X] did not live with his mother for an extended period prior to her relocating to [Country B]. His current ‘deep down’ feeling that he wants to live with his mother may have been accentuated by his not living with her through this period.
(As per the original)
Mr K’s oral evidence was even more profoundly strong. Mr K agreed his primary recommendation was not a permanent move and that X’s preference was for a period of time for about 12 months. That X was in two minds about whether he wanted to live in Country B permanently and the important issue for Mr K in his report, and expressed orally, was that deep down in his heart he wants a chance to live with his mother for a period of time.
The expression that X wants to “live with his mother in Country B at least for a period” is consistent with the recommendations advanced by Mr K and Ms Tin’s letter to the parties.
Mr K said that although X did not express a time-frame, his views were mature and nuanced, which expressed his conflicted feelings. That X has a mature way of looking at matters, such as those depicting the “weighing scales metaphor” and that he would pick family and friends over lifestyle.
One of the reasons Mr K opined the Court should give weight to X’s views was that he is thoughtful and to have asked X to express his views and then override them would be troubling. That to override the view of a child of X’s intelligence and character would be disrespectful, disempowering and may result in him having little faith in the institutions around him. This could also apply to his parents but Mr K said given their capacity as parents they would probably work this out with X.
Mr K agreed that a year out of X’s life or a period of time would disrupt his school year, his social life and his sporting activities. That there are clear downsides and positives in either option.
I asked Mr K why the Court would depart from an arrangement that works well (i.e. “if it ain’t broke, don’t fix it”). Mr K was clear that this was not the correct way to assess the matter and doing well in every area of life must be juxtaposed with wanting a “deep-down” relationship with his mother.
It is clear that X cannot balance these competing proposals and the Court must determine this issue.
Mr K’s opinion was that one year is a better solution than shorter periods and agreed that his observations at paragraph 93 above were the crux of his recommendations. Further, it was considerably important for X to spend time with the mother if he was not permanently relocating.
At the interview with Mr K, X was 12 years old. Mr K said there is a period of about 18 months for him to reconnect with the mother, and fulfil his “deep down” feeling, and for him to continue on his positive trajectory and continuing in autonomy and individuation as he ages.
In relation to the father’s position that the relocation will be disruptive for X, Mr K said that X getting older is a protective factor for him and he will be able to deal with the disruption. If X had more holidays with the mother this would mitigate the “yearning”, but he was clear that there is a clear difference between visiting a parent for holidays and living day-to-day with a parent, engaging in school, and strengthening the connection with your child on a day-to-day basis.
Counsel for the mother asked Mr K what the result may be if X’s views were not assuaged:
[MR K]: We would see in him a sense of sadness and unfinished business, figuratively, in his relationship with his mother. They are very close. And for him then to have the opportunity, for some time, to be with his mother … to achieve independence, you need to ground yourself in the parental relationship and move on from there. This way he’s not having the experience of a close relationship with his mother for this next year if there was to be an absolute order that he doesn’t go … he needs that [close relationship] more with his mother at the present time, at the time of me writing the report.
Mr K clarified that if the “yearning” was not fulfilled, X would still have a strong relationship with both parents, but that it would negatively affect X himself rather than his relationship with his parents.
Mr K also said that X was mindful of the possibility of wanting to stay in Country B, citing that X is mature enough to understand the concept of a “trial” period in Country B.
Mr K did not think X would resent either of his parents. That if he went for a year and did not want to return the parents would have to work this out. That these next two years are developmentally very important for X.
Mr K could not see that the father had consciously or wilfully influenced X’s views.
The father did his best in relation to Mr K’s evidence, properly put the three proposals to him, which were:
(1)X remain living in Australia and see the mother during school holidays;
(2)X have his “trial” period in Country B; and
(3)X relocate permanently to Country B;
And suggested that X could now have changed his mind from his interviews with Mr K.
It is apparent X has not done so as I accept the evidence of contained in Exhibit ICL2 said in July 2023:
I prefer Australia as the place to live in, but I think that it would be good for me to try to live in [Country B] for a bit.
Similarly, with the decision of Christie J, the father raised important peripheral issues; disruption to school, disruption to social activities, disruption to his relationship with the father and his siblings, that he is not fluent in Country B language, going to live in a totally different environment, and that the Australian and Country B school calendars are entirely different, which could result in two years of disruption to X’s progression in an Australian school year. All these matters are highly relevant and highly important and are factors to be weighed up in the balance. However, none of those factors, in Mr K’s view, were as important or developmentally important as this “deep down”, “yearning” to reconnect on a day-to-day with his mother and live with her for a period of time.
The father put the three proposals listed above to Mr K and asked him what the “least disruptive option” to X would be. Mr K gave his answer as to the “least negatively impactful option” upon X, saying the “least negatively impactful” would be for a “trial” period in Country B and if he did not like living there he could return to Australia. It was apparent from this evidence that although the “least disruptive option” might be for X to remain in Australia it was not the “least negatively impactful option” or the priority for Mr K.
The father put to Mr K that X saying to him that the “trial” period could be a year, then saying to the ICL that the he wants to “try to live in [Country B] for a bit”, is a reduction in the “trial” period. Mr K was quick to say that he would “caution against taking those words as literally as that”, suggesting “a bit” could mean a year.
Although Mr K accepted there is no guarantee as to the success of a “trial” period, Mr K said that wherever X is, he will “give it his best shot”.
Further, Mr K agreed that although it is normal for X to miss the mother as he is not living with her, X misses the mother with a sense of “yearning because of the nature of their relationship”.
The father put to Mr K if X returned to Country B he would express the same “profound feelings” toward the father:
[MR K]: I think he would’ve expressed profound feelings of missing you. I think there is a qualitative difference in the attachment relationship between the two of you, but he would certainly have missed you, yes, and missed your input into his life, yes.
The father further asked that in that scenario it would be correct X may wish to come to Australia if he has the same “deep down” feeling of missing the father:
[MR K]: Yes, I think that’s true, but I don’t think it’s to the same degree because of the nature of his relationship with his mother. I’m very respectful of his relationship with you but it’s different qualitatively.
THE LAW
The starting point is the decision of Goode & Goode,[2] as it is referred to in the seminal decision in relation to relocation matters of Boland J in Morgan & Miles,[3] wherein her Honour says:
68As I have already noted, the Full Court in Goode discussed at paragraph 65 the effect of a court making an order for shared parental responsibility. Such an order “triggers” a requirement that the court consider whether a child spending equal time with each parent is in the child’s best interests, and whether such arrangement is reasonably practical, or if no order is made for equal time, to consider the child spending substantial and significant time with each parent if it is in the child’s best interests and reasonably practical (s 65DAA(1) and (2)). In a case involving relocation, which raises issues of whether a child spending equal, or substantial or significant time, is “reasonabl[y] practicable” s 65[D]AA(5) is likely be of significance.[4]
(As per the original with clarification)
[2] (2006) FLC 93-286 (Bryant CJ, Finn and Boland JJ) (“Goode”).
[3] (2007) FLC 93-343 (Boland J).
[4] (2007) FLC 93-343 at [68].
Her Honour then explored the principles of relocation matters as follows:
72There can be no dispute that in determining a case where one party, which research indicates is invariably the mother … wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
73It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.
74The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.[5]
(As per the original)
[5] (2007) FLC 93-343 at [72]–[74].
Her Honour continues and notes that in considering whether a child should live with the parent who proposes to relocate, a Court:
•Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
•Make orders having regard to the child's best interest as the paramount, but not the sole consideration.
•Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
•If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
•In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
•When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
•Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child's best interests, make such order which may provide:
•that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
•that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
•that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
•the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
•Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.[6]
(As per the original)
[6] (2007) FLC 93-343 at [79].
Her Honour distilled the four principles as follows:
•that the child's best interests remain the paramount but not sole consideration;
•that a parent wishing to move does not need to demonstrate "compelling" reasons;
•that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
•the child's best interests must be weighed and balanced with the "right" of the proposed relocating parent's freedom of movement …[7]
(As per the original)
[7] (2007) FLC 93-343 at [80].
Her Honour went on to say that the legislation requires a Judge to consider the parties’ competing proposals against the criteria set out in sub-sections 60CC(2) and (3), informed by section 60B, of the Act. That, generally speaking, findings in relation to the factors in section 60CC must be applied to findings in relation to the consideration of equal time or significant and substantial time.
Importantly, parenting orders must be practical and realistic.[8]
[8] MRR v GR (2010) 240 CLR 461 (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
More recently in Zahawi & Rayne,[9] the Full Court of the Family Court of Australia (as it was then known) opined:
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.[10]
(As per the original)
[9] [2016] FamCAFC 90 (Thackray, Murphy and Austin JJ).
[10] [2016] FamCAFC 90 at [48].
The options available to me are:
(1)X remains living in Australia (the father’s proposal);
(2)X relocates to Country B with an end date (the ICL’s proposal); or
(3)X relocates to Country B to live without an end date (the mother’s proposal).
There was a suggestion by Mr K that as part of the “trial” period, there be some mechanism to allow the parents to engage with someone, such as himself, to ascertain X’s views at the end of the trial period and some determination occur i.e. an arbitration. I noted during the hearing that this is not something I can do, as the Family Law Act 1975 (Cth) (“Act”) does not permit this and I cannot abrogate my duty to make orders under Part VII of the Act in the absence of the parties agreement.
Having set out the proposals, I must now assess each with the factors under sub‑sections 60CC(2) and (3) of the Act when coming to make an order in X’s best interests.[11]
[11] Family Law Act 1975 (Cth) ss 60CA, 60CC(1).
In relation to parental responsibility, there was no dispute that it be equally shared. Given these parties’ impressive parenting relationship, they clearly have the capacity to properly communicate with each other in relation to X. Therefore, the presumption is not rebutted and it is an appropriate order to make.[12]
[12] Family Law Act 1975 (Cth) s 61DA(1).
In circumstances where no family violence, abuse, or unacceptable risk is raised,[13] the orders I am to make are to ensure that X has a meaningful relationship with both parents.[14]
[13] Family Law Act 1975 (Cth) s 60CC(2)(b).
[14] Family Law Act 1975 (Cth) s 60CC(3)(a).
X’s views are clear, intelligent, thoughtful, and balanced. Given he is 13 years old and continues to express a view to “live in [Country B] for a bit”, I must give them weight for all the reasons Mr K set out in his report and confirmed in his oral evidence.[15]
[15] Family Law Act 1975 (Cth) s 60CC(3)(a).
Despite any inconsistencies between the text message of 6 June 2023 and Mr K’s report read with the August 2023 letter from the ICL, the most salient evidence in this matter was that of Mr K. Mr K’s report was clear X was expressing a view to spend some period of time with the mother in Country B to experience day-to-day life in that country with her.
X’s relationship with each of his parents is strong, committed, and connected.[16]
[16] Family Law Act 1975 (Cth) s 60CC(3)(b)(i)
However, consistent with Mr K’s evidence, there is a qualitative difference in the attachment relationship between X and the father, and X and the mother. The missing of the father would not be of the same quality as the mother which is a “deep down” “yearning” and is much more than just missing.
X has a strong relationship with his family in Country B and his family in Australia, being his siblings, sisters, and extended family. X has not seen as much of his maternal extended family, who he only sees on his holidays to Country B, as he has of his paternal extended family.[17]
[17] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).
Both parents have taken every opportunity to include themselves in important decisions about X’s life. The parents have fulfilled their obligation to support X to the best of their financial ability.[18]
[18] Family Law Act 1975 (Cth) s 60CC(3)(c)(i)–(iii), (ca).
There will be a significant change in X’s circumstances in his being removed to Country B, either permanently or for a limited period. His schooling will change, his friendships will change, his extracurricular activities will change, he will be separated from the father who has been his primary carer now for four to five years, his older sisters, from a country where he is fluent in the language to a country where he expressed some concern about his fluency and an entirely different environment.[19] These are significant changes and significant disruptions that are advanced by the father in support of this case and I accept that they are real.
[19] Family Law Act 1975 (Cth) s 60CC(3)(d)(i).
X will be impacted upon by separation from his parents. However Mr K was clear that his yearning and strong need to be with the mother indicates that there is a significant qualitative difference in his attachment to the mother to that of the father, although he will miss the father, Ms C, and Ms D, as he has missed the mother and his sister, Y, who live in Country B.[20] Mr K was also clear that wherever X is, he will give it his best shot.
[20] Family Law Act 1975 (Cth) s 60CC(3)(d)(i)–(ii).
There is significant practical difficulty and expense of X spending time with his parents given one is in Country B and one is in Australia. However, the parents have managed to accommodate this with very few hiccups since the mother and Y’s return to Country B, and this will continue no matter what order I make.[21]
[21] Family Law Act 1975 (Cth) s 60CC(3)(e).
Both parents have a high capacity to support X and provide for his emotional, financial, intellectual, and psychological needs.[22]
[22] Family Law Act 1975 (Cth) s 60CC(3)(f)(i).
X has lived in Country B for a period of time; he has joint citizenship. He speaks Country B language, albeit on a limited basis; he will pick that language up quickly. He likes the culture. This will be an enriching process for him, as it has been for Y.[23] X is extremely mature, highly intelligent, thoughtful, and reasoned, and is an impressive young man.
[23] Family Law Act 1975 (Cth) s 60CC(3)(g).
Both parents have a proper and appropriate attitude to X and their responsibilities of parenthood. However, there is just a lingering concern about the father in saying that X “is truly one of [his] best friends”. This reveals that the father has an overwhelming need for X to remain in his care. He was surprisingly resistant initially to him spending holidays in Country B, and is resistant now to him spending even limited time in Country B, despite having told Mr K when he heard X’s view in 2022, that he would be prepared to give it a go.[24]
[24] Family Law Act 1975 (Cth) s 60CC(3)(i).
There are no family violence issues in this matter.[25]
[25] Family Law Act 1975 (Cth) s 60CC(3)(j)–(k).
Finally, in making an order in X’s best interests, I must also consider making an order that is least likely to result in further litigation,[26] however X’s best interests are paramount.
[26] Family Law Act 1975 (Cth) s 60CC(3)(l).
Going now to the parties’ proposals.
Proposal 1 – X remains living in Australia
If X remains in Australia, things will remain the same for him; he will spend time with the mother in Country B. His views will have been ignored by the Court and his “deep down” “yearning” to spend a period of time for “a bit” with the mother in Country B will have been ignored and unable to be assuaged. This may have psychological consequences in the future for him, as foreshadowed by Mr K in cross-examination.
The father’s submissions were that if X were to relocate to Country B – whether indefinitely or for a period – this would cause significant disruptions to X. Further, there is no guarantee that this change would be of benefit to X or be in his best interests, and that X is happy and settled in Australia and there is no real impeller to disrupt this arrangement which is working well. Mr K’s evidence on this issue was that this was not the correct way to look at the issue given X’s “deep down” “yearning” to spend time with his mother which was developmentally important at this time in respect of his ongoing development of self.
The father pointed to X’s indecisiveness and being “torn” about wanting to spend time with both parents in both places and that he had changed his mind multiple times. The father submitted that X has never consistently expressed the idea of moving permanently to Country B, and a “trial period” would fill the “void” of missing his mother but only in the short-term, with the disruptions outweighing the benefits of X remaining in Australia. I do not accept this submission other than he has not expressed a wish to live in Country B indefinitely. It is only the text message of 8 June 2023 where any change to that which he told Mr K in 2022 and Ms Tin in July 2023 is noted. I am not entirely confident the text message has the same credit as the report and the ICL’s letter given his views at those times were expressed to independent experts.
In essence, the father relied upon the “status quo” to formulate his argument in support of his proposal. In Burton and Burton,[27] the Full Court of the Family Court of Australia said:
… we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination and if a long standing status quo is disturbed, the factors which influenced the Court to come to that conclusion should be clearly identified. …[28]
(As per the original)
[27] (1979) FLC 90-622 (Evatt CJ, Ellis SJ and Smithers J).
[28] (1979) FLC 90-622 at 78,218.
Further, I am required to make an order that is in the best interests of X, having regard to the factors in sub-sections 60CC(2) and (3). The “status quo” of the parenting arrangements of X remains “one factor to be weighed” in circumstances where paragraph 60CC(3)(d) is required to consider the “effect of any changes” in X’s circumstances.
Proposal 2 – X relocates to Country B with an end date
If X relocates to Country B, as proposed by the ICL, for a year, this will disrupt his usual activities, his day-to-day schooling, and his relationship with the father, Ms C, and Ms D. However, it will assuage his “deep down” “yearning” to spend time living with the mother, and living day-to-day with her and Y.
X will know there is a time limit on living in Country B, and that he will return to Australia, consistent with what he told Mr K in 2022 and he will have that which he wants, namely to experience living with the mother in Country B but knowing he is to return to Australia, a place where he believes he has more opportunities.
The ICL’s position reflects what X told both Mr K and Ms Tin he wants to do.
Proposal 3 – X relocates to Country B permanently
If X relocates to Country B without an end date, his views are not being listened to by the Court or implemented. Instead, the Court is relying upon the mother to return X to Australia if wants to return. Although I am inclined to the view that both these parents could be relied upon to do this, my concern is that to put a child through a process of having to express a wish to the parent they are living with to return to the other parent may be an emotionally and psychologically damaging experience for the child and the parent, particularly when as Mr K said X wants to trial living in Country B and if it does not work to return to Australia and such a circumstance has been proposed by the ICL.
Evaluation and findings
I find, consistent with X’s strong views, his intelligence, his thoughtfulness and mindfulness of the consequences for him of his decision to leave Australia and live in Country B for a “trial” period that such an order being made is in his best interests. His strong views at the interviews with Mr K and expressed to Ms Tin as little as two weeks before the hearing is the factor that weighs in on the balance of making the order that he live in Country B for a trial period. As Mr K said, to not accede to his views would be to disrespect him. X may then lose faith in the institutions and such a decision may have some negative consequences for his present positive and impressive emotional and psychological functioning.
I find that it is an order in X’s best interests he be given the opportunity he seeks to spend a period of time in Country B living with the mother and Y, and attending school, and that the clear disruption to his usual routine and life and separation from his father and sisters does not outweigh the benefit to him of such an order. The benefit of the order is that he will be living in Country B with the mother and importantly this will assuage his “deep down” “yearning” to live with the mother in Country B, day-to-day, whilst ensuring his wish to return Australia, a country he says has more opportunities for him is respected. If X misses a year of school in Australia and has to repeat, that may well be the least worst option given the enriching process it will be for him in Country B living with the mother and Y, attending a different school, a different education system, and immersing himself in the Country B culture and language.
I will order X be permitted to leave for Country B to commence the school year, which I was told was September 2023.
As to the period of time X is to live in Country B and when he returns to Australia. The ICL provided for X to return in July 2024 and perhaps commence the next school term in Australia. Neither of the parents gave evidence about when X should return in the event I acceded to the proposal of the ICL.
I will order X return to Australia no later than 20 July 2024, which gives him the opportunity to have the benefit of part of the summer long school holiday period in Country B and an opportunity to start school in Australia in the third term of 2024.
PAYMENT OF MR K’S FEES
The mother sought an order that the father pay a half-share of Mr K’s fees in relation to the preparation of his report in the sum of $6,050.
The father resisted this order stating that he never wanted the report.
Mr K was appointed as a single expert witness pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) by consent on 5 July 2022. The orders made on this date are clear: the mother is to be initially solely liable for Mr K’s fees, but the issue of whether the father should contribute to these fees remain an issue for determination at the final hearing.
There was not one sound reason he gave for not paying half of this cost.
The report formed part of the evidence at the hearing and was agreed to by consent in July 2022.
Further, rule 7.06 of the Rules provides the following:
7.06 Single expert witness’s fees and expenses
(1)Unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
The father has a far superior income to that of the mother.
For all these reasons, I am satisfied that the father should pay the mother $6,050 as his half-share for preparation of Mr K’s report, with such a sum to be paid within 60 days.
THE ICL’S COSTS
During submissions, the ICL sought that the parties pay a contribution of the ICL’s fees in the sum of $1,650 each. The fees sought are a significant reduction to that ordinarily sought for a final hearing and were compromised by the ICL as the hearing took less time to complete than anticipated.
Both parents opposed such an order with the mother primarily opposing on the basis of her impecuniosity. I note that impecuniosity alone is not automatically a sufficient reason from preventing a court from making a costs order against a party.[29]
[29] Lenova & Lenova [2011] FamCAFC 141 at [12] (Bryant CJ, Coleman and Murphy JJ).
Further, it is well-settled that one factor in sub-section 117(2A) may be sufficient to warrant departing from the presumed position in sub-section 117(1), and for a costs order to be made.[30]
[30] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 (Kay, Warnick and Boland JJ); Prantage & Prantage (Costs) [2014] FamCA 850 at [12] (Bennett J).
Looking at Exhibit F1, the father is assessed as having a taxable income of approximately $150,000 for the 2023 financial year.[31] I am satisfied that the father should pay his half-share of the ICL’s costs sought in the sum of $1,650.
[31] Family Law Act 1975 (Cth) s 117(2A)(a).
In circumstances where I am satisfied that the ICL’s involvement and participation in these proceedings was useful and helpful to the Court, and the orders sought at this hearing were independent of those to the parents,[32] I am satisfied that the mother should pay her half-share of the ICL’s costs sought in the sum of $1,650.
[32] Family Law Act 1975 (Cth) s 117(2A)(g).
The ICL proposed these costs be paid in 28 days. No doubt the parents will have expenses relating to X, particularly the mother, and I will order these costs be paid in 60 days.
CONCLUSION
For the above reasons, I make the orders as set out in the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 22 August 2023
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