SHERWOOD & SHERWOOD

[2014] FamCA 662

FAMILY COURT OF AUSTRALIA

SHERWOOD & SHERWOOD [2014] FamCA 662

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION - Where the mother seeks to relocate internationally with the parties’ youngest child – Where the parties’ eldest child lives in the United Kingdom and has a strained relationship with the father – Where the children have been exposed to the parental conflict – Where the father seeks that the youngest child remain living with him in Australia – Where the mother has not been frank and forthcoming with the Court - Where the child’s wishes should be given some weight due to her age – Whether the parents should share parental responsibility – Where the child is permitted to relocate and is to spend time with the father in the United Kingdom and Australia – Where the Court Orders are to be registered in the United Kingdom pursuant to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (The Hague, 19 October 1996) – Where the relocation is conditional upon the mother depositing security to ensure compliance with Court Orders for the child to spend time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

AMS and AIF (1999) 199 CLR 160
B and B: Family Law Reform Act 1995 (1997) FLC 92-755, (1997) 21 Fam LR 676 Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Morgan & Miles (2007) FLC 93-343, (2008) 38 Fam LR 275
Muldoon & Carlyle (2012) FLC 93-513
Sayer & Radcliffe and Anor (2013) 48 Fam LR 298

APPLICANT: Mr Sherwood

RESPONDENT: Ms Sherwood

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 1907 of 2009

DATE DELIVERED: 19 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 31 March, 1 & 2 April, 29 & 30 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Giveny

SOLICITOR FOR THE APPLICANT: Tilley Family Law & Mediation

COUNSEL FOR THE RESPONDENT:

Mr O'Brien;

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal;

Craddock Murray Neumann

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. That all previous Orders with respect to the child, D, born … 2000, (“the child”) be discharged as and from the date of the mother’s departure for the United Kingdom.

2. That the parents have equal shared parental responsibility for the child.

3. That the child live with the mother.

4. That the mother be permitted to relocate the child’s permanent residence to the United Kingdom, on or after the completion of the child’s school year, subject to the mother’s compliance with Orders 8 and 9 below.

5. That the child spend time with the father as follows:

   (a)Following the mother’s departure from Australia, and until such time as the child travels to the United Kingdom in accordance with Order 4, the child is to spend continuous time with the father and the child is to spend time with the mother in Australia as agreed between the father and the mother in writing.

   (b)That following the child’s relocation to the United Kingdom, she is to spend time with the father as follows:

   (i)In Australia for a minimum of three (3) weeks during the Christmas/New Year period commencing in 2014/2015, with the mother to book and pay for the child’s airfares; 

   (ii)In Australia for a minimum of three (3) weeks during the United Kingdom long summer break, with the father to book and pay for the child’s airfares;

   (iii)That the father have liberal and flexible time with the child at any time that the father is in the United Kingdom, and that the father shall be at liberty to take the child out of the United Kingdom during any such period, provided that the child does not miss more than five (5) days of school during any such period; and

   (iv)At such other times as may be agreed between the parties from time to time and/or as may be reasonably requested by the child.

6. That for the purposes of Order 5:

   (a)The father is to provide the mother with a minimum of sixty (60) days’ notice of the dates that the child is to spend time with him in accordance with Order 5(b)(i) and (ii), such time as far as practicable to coincide with the child’s school holiday periods;

   (b)The child is to travel as an unaccompanied minor and both parents shall do all acts and things necessary, including executing all documentation required, to enable this to occur;

   (c)       The child is to travel on the most direct flight reasonably available;

   (d)The child is to travel in economy class unless otherwise agreed by the parties; and

   (e)The parent who is responsible for booking the child’s return flight is to provide to the other parent a copy of the child’s flight itinerary not less than twenty-eight (28) days prior to her scheduled date of departure.

7. That the child be at liberty to communicate with either parent at all reasonable times, either via telephone, Skye, FaceTime, email or other electronic means and that both parents shall do all acts and things necessary to ensure that whilst the child is in their respective care, she has access to a telephone, iPad and/or computer with sufficient credit and/or internet access.

8. That prior to the child’s departure from Australia pursuant to Order 4, the mother is to file with this Court an affidavit, a copy of which must be served upon the father and the Independent Children’s Lawyer not less than twenty-one (21) days prior to the child’s departure, such affidavit to annexe documentary proof that the mother:

   (a)Has obtained from a court of competent jurisdiction in the United Kingdom recognition of these Orders pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (“the Child Protection Convention”); or

   (b)Has obtained from a court of competent jurisdiction in the United Kingdom a declaration of enforceability of these Orders in the United Kingdom pursuant to Article 26 of the Child Protection Convention; or

   (c)That she has registered a copy of these Orders in a court of competent jurisdiction in United Kingdom pursuant to Article 26 of the Child Protection Convention.

9. That at least twenty-one (21) days prior to the child’s departure from Australia in accordance with Order 4, the mother is to pay the sum of $25,000 into a controlled money interest bearing account to be held by the father’s solicitor and:

   (a)That such sum be released to the father in the event that the mother fails to comply with Order 5 herein, to be utilised by the father in respect of any reasonable court and/or legal costs incurred by the father in bringing any application for enforcement or contravention of these orders;

   (b)The father, upon request from the mother, shall account for his expenditure from such sum including the provision of receipts for expenditure incurred by him; and

   (c)That any outstanding amount be refunded to the mother upon the child’s sixteenth birthday.

10. That at least fourteen (14) days prior to the child’s departure from Australia in accordance with Order 4, the mother shall:

    (a)Provide the father with written notice of the address at which the child will be staying upon her arrival in the United Kingdom, including the names of any other person who will be living in that accommodation;

    (b)Provide the father with written confirmation that the child has been enrolled in school or that all necessary steps have been taken to ensure that the child will be enrolled in school upon her arrival in the United Kingdom, such notice to include:

    (i)Any correspondence received by the mother confirming or evidencing the child’s enrolment;

    (ii)Any written information / package provided by the school; and

    (iii)The name and contact details of the relevant person at the school whom the father may contact to make enquiries with respect to the child’s attendance and progress at the school.

11. That the parties are to keep each other informed of their residential address, telephone number/s and email address and notify the other within seven (7) days of any change to same.

12. That the mother is to ensure that the father’s details are recorded on the child’s school enrolment and, to the extent that it may be necessary, the mother shall authorise the school to provide to the father any information that the father may from time to time request with respect to the child’s attendance and progress.

13. That each of the parents shall ensure the other parent is kept informed, as soon as reasonably practicable, of:

    (a)Any medical problem or illness suffered by the child whilst she is in their care;

    (b)Any specialist medical appointment with any doctor, psychiatrist, psychologist, counsellor or therapist regarding the child; and

    (c)       Any other matter relevant to the child’s welfare.

14. That the mother sign an undertaking to the Court that in the event of the child having been in the United Kingdom for a period of three (3) months or more requesting to return permanently to Australia, the mother will notify the father in writing of such request, seek the father’s agreement to the child returning to Australia to live with him and upon receipt of the father’s agreement, do all things necessary to facilitate the child’s return to Australia within thirty (30) days or such other period as agreed between the father and the mother in consultation with the child.

15. Liberty to apply as to the enforcement or implementation of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sherwood & Sherwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1907 of 2009

Mr Sherwood

Applicant

And

Ms Sherwood

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In these proceedings the Respondent mother, notwithstanding her lack of candour with the Court, seeks an order that would facilitate the younger child of the parties’ relationship D relocating to reside with her in the United Kingdom.

2. There has been a significant history of litigation between the parties. A short overview is set out below.

3. The Applicant father is aged 49 and the mother aged 47. The parties married in 1994 but commenced cohabitation in about 1992. The parties separated in September 2005 and were divorced on 13 July 2009.

4. There are two children of the marriage. The eldest child B turned 18 on 9 April 2014. The youngest child, D the subject of these proceedings, is now aged 14. There is no doubt that the two children have a strong bond and the child is interested in her brother’s sport career.

5. Both the mother and father have had well-established and significant relationships with both of their children. The father’s relationship, as a consequence of the present issues, has seen his relationship with his son diminished and his relationship with his daughter enmeshed in the present conflict about relocation. He was so concerned about this that in March 2014 he requested assistance from his daughter’s pastoral care teacher to assist her. The child’s engagement with pastoral care was thwarted by the mother.

6. Shortly after separation, parenting Orders were made by consent that, in summary, provided for:

   a)the father and mother to have equal shared parental responsibility;

   b)the children to primarily live with the mother; and

   c)the children to spend time with the father on alternate weekends during school term, half school holidays and on special occasions, such as Christmas and Father’s Day.

7. It is common ground that subsequent to separation the relationship between the parties was poor. Their communication was perfunctory and conflictual. Prior to separation the parties had couples counselling and post separation the mother and children attended upon a psychiatrist for issues arising therefrom. The mother was on antidepressant medication at this time.

8. The mother’s affidavit evidence is replete with carping criticism of the father as she goes over in minutiae the issues that have arisen between herself and the father since separation. The mother acknowledged that her affidavit was “a litany of complaints about the father and his commitment to the children”. The same approach was reflected in the cross examination of the father by the mother’s counsel, which was hardly helpful to the primary issue for determination.

9. Following separation, the father was appropriately engaged in the children’s lives, in particular his son’s sporting career, and the children participated in the father’s love of sailing.

10. It is common ground that the children have a close relationship with the extended paternal family.

11. Following separation, the father and mother entered into the provisions of a child support agreement that provided for the father to pay child support as assessed from time to time and for the mother to pay the children’s private school fees to facilitate the children’s attendance at private schools chosen by her. In addition to his assessed obligation for periodic child support the father paid other expenses for the children from time to time.

12. Following separation, the father resided with his parents until December 2006, at which time he purchased a small cottage at Suburb H. He returned to reside with his parents for a period following sale of that property and until the purchase of his present home at Suburb I. The father, being a self-employed builder, proposes to demolish and rebuild the cottage at Suburb I at some time in the future.

13. After property settlement, the mother purchased a property for the accommodation of herself and the children. That property was sold in about January 2012 and thereafter the mother and the children have resided in several rented properties. The mother presently has a significant net capital sum on interest-bearing deposit. At trial, the mother resided in rented premises at Suburb J in Sydney.

14. The father has had a relationship with his current partner since January 2010. The father and his partner do not live together. His partner has two children who are aged 17 and 14 and those children are known to the parties’ children. The mother acknowledges that the child has an “okay” relationship with the father’s partner and a good relationship with the father’s partner’s daughter.

Employment

1. The father continues to be self-employed through a family trust with the trustee K Pty Ltd, although the evidence suggests that he has expended significant time and effort on renovations to the home purchased by him after separation that has significantly impacted on his available income. As a consequence, his financial contribution to child support and the children’s lives is the subject of criticism by the mother.

2. The mother is self-employed, has worked part-time in retail and maintains an outlet as an online store, which is her primary source of income. The mother on her relocation to the United Kingdom proposes to study a bachelor’s degree and continue to maintain her primary source of income through her online store.

Recent events

1. In May 2011 the mother travelled to Country L and Country M for a month, leaving both children in the full-time care of the father. Upon the mother’s return and in July 2011, the mother sought the father’s consent to take the children to live in Country L for two years as “an educational experience”. The father opposed this course and the parties engaged in failed mediation in relation to the mother’s proposals.

2. In February 2012 the mother informed the father that the eldest child B was eager to pursue his sports career overseas and his inability to do so was impacting on his emotional well-being. The father asserts that this was the first occasion he had become aware of B’s wishes or any concern in relation to his health. On 23 February 2012 the father received correspondence from the mother’s lawyers enclosing a proposed application in which the mother sought permission to relocate with the children to Country L.

3. Subsequently, the father met with his son and the father was informed by B that he had an offer to trial for two English sports clubs. B could not provide any details. Subsequently, there was an exchange between the mother and father in which the father sought further information in relation to the proposals relating to his son.

The mother taking B to England

1. On 1 March 2012 the father was informed by his son’s school that B was absent and he received an email from the mother informing him that without his consent she had travelled to the United Kingdom with B for sport trials in City N. The mother further informed the father that the child was at her home with the maternal grandmother.

2. The mother told the child D of her plan to go to the United Kingdom only the day before her departure and told her that the father was unaware of her departure with B. Without the father’s knowledge or consent, the mother arranged for the maternal grandmother to care for the child in her absence, suggesting that it was unlikely the father would have wanted to care for the child in her absence and proposed by communication to the father after her departure that he simply continue to have time with the child D as provided for in Orders.

3. The father made enquiries of his son’s school and ascertained that the school was unaware that the child had been removed in the circumstances disclosed by the mother and that, in circumstances where he was absent for an extended period, he may be expelled. Prior to the mother’s departure she did not disclosed to the father her intention of unilaterally removing their son from Australia notwithstanding that there were in force parenting Orders under the Family Law Act 1975 (Cth) (“the Act”).

The father’s application to the Court: March 2012

1. On 1 March 2012 the father filed an application seeking further parenting orders. The father sought orders that the mother surrender the children’s passports to him and she be restrained from procuring the issue of any further passport for travel document for the children and that the mother further be restrained from removing the children from the Commonwealth of Australia and that the children be placed on the Airport Watch List.

2. Notice of that application was provided to the Australian Federal Police and both children’s names were placed on the Airport Watch List.

3. Subsequent to the mother’s departure, the father continued his regular time with his daughter, the mother objecting to the father spending any additional time with the child, notwithstanding that she was overseas with B. After the child requested that she be able to spend each weekend with her father, she did until the mother’s return from overseas.

4. Whilst in the United Kingdom the mother herself travelled to Country L, Country M and Country P, leaving her son supervised by “two ladies”.

5. The mother subsequently filed a Response to the father’s application, and in that response, she sought to be able to relocate with the two children to Country L for a period of two years.

6. Subsequent to the mother’s return from the United Kingdom, the children recommenced spending time with the father as had been in place previously. On 2 April 2012 the headmaster of B’s school wrote to the mother reminding the mother of her obligation to ensure that the child attends school, that any leave must be approved by the school and requirements of the Education Act be complied with and that the school proposed to notify the Department of Education in the event of any further unapproved leave taken by B. Otherwise, the mother was informed by the headmaster in the same letter of the school’s requirement that B play sport for the school in the team assigned to him by coaching staff and he comply with attendance at winter sport commitments. The school confirmed that B’s obligations to the school had priority over any other external commitments.

1. On his return from overseas, B continued to play for a Sydney club. The mother obtained a referral for B to see a psychologist and the father attended upon that psychologist on two occasions, once on his own and the second time with B. B expressed a wish that he be able to go to the United Kingdom to further his football career. The father says he was supportive of the child doing so once he had completed his Higher School Certificate.

2. On 12 May 2012 the mother emailed her son’s school and advised that B had a doctor’s appointment and he would not be playing for the school that day. Notwithstanding this, B played for the Sydney club on that day. Subsequent to meetings and correspondence with the school, the school informed the mother that B was required to continue playing for the school in priority to his club games and if this was not acceptable B would be required to leave the school at the end of Term 2.

3. Thereafter, notwithstanding existing Court Orders, the mother would only make B available to the father for weekend time after B had finished his Saturday club commitments.

4. The mother subsequently sought expedition of her application to be able to relocate to Country L with the children, proposing that she and the children reside in Country Q in Country L.

5. The mother later informed the father that B had been offered a place with the G Sporting Club and she changed her application to seek to be able to relocate to live with both children in the United Kingdom in July 2012.

6. The father understandably made enquiries from the G Sporting Club as to the nature of the offer made to his son. Shortly thereafter, the children were with the father for a weekend during which the child B became emotional and said that he felt responsible for his mother’s unhappiness saying “she was not happy in Australia and wanted to go overseas to leave”.

7. However, by late July 2012, B and the father’s relationship had deteriorated to the extent that B spent no time with the father, B being of the view that the father had interfered with his prospects of obtaining a placement in relation to sport in the United Kingdom.

8. On 9 August 2012 an Independent Children’s Lawyer was appointed to represent the interests of the children.

9. In early September 2012 the mother amended her Response to seek to relocate to live in England and for B to be allowed to travel to England to pursue his sporting career.

10. B completed his Year 10 studies at the end of 2012 and thereafter commenced the two-year Higher School Certificate program that would facilitate him participating in those examinations in late 2014. He did not play for the Sydney club in 2013 but played for his school team.

11. The relationship between B and his father remained distant with B spending no time with his father. The father continued to see the child as provided for in the Court Orders.

The mother’s interim application

1. On 8 February 2013 the mother filed an Application in a Case seeking orders that would facilitate B being permitted to travel overseas for the purposes of trialling at sports clubs between 15 February and 1 May 2013. It was the father’s view that the child should complete his Higher School Certificate before pursuing his sporting career overseas. 

2. In early March 2013 the father received an email from the child D informing him that she wanted to go to England with the mother and her brother. It was clear by this time that both children were significantly enmeshed in the conflict that was before the Court.

3. The mother’s interim application was before the Court again on 15 April 2013. The mother inappropriately facilitated the attendance of the child B at court that day. The child approached the father and said to him “if you don’t let me go I will never talk to you again”. B’s school had indicated its consent to the child being withdrawn from his school, undertaking distance education whilst overseas and then re-enrolling at his school upon his return to Australia. The mother agreed that during her proposed absence with B overseas the child would live with the father full time. The father agreed to orders facilitating B travelling to the United Kingdom to undertake sporting trials for the period from 17 April 2013 to 8 June 2013 and Orders were made accordingly.

4. Whilst the mother was overseas with B, the father received correspondence from the mother’s solicitors informing the father that:

   a)B had received an offer to train with a club and to study a diploma in sport;

   b)B had the opportunity for further sport trials in July;

   c)B had requested that the father be given no contact details in relation to the alleged offer;

   d)the mother had received an offer to study in England commencing in September 2013; and

   e)the mother had made enquiries with various schools for the child to attend.

5. The mother and B return to Australia on 8 June 2013.

The mother’s further interim application

1. The mother amended her Application and sought orders that B be permitted to return to England to pursue his sport career on or before 11 July 2013 and that application be expedited. The father objected and required the mother to comply with the earlier Orders made by consent.

2. The mother’s further application was before the Court on 26 June 2013. The Court made Orders that, in summary, permitted B to leave Australia and travel to England for the purpose of training in a sports academy. The Court refused the mother’s application that the father be restrained from communicating with clubs in the United Kingdom in relation B’s circumstances. Once again, the mother inappropriately facilitated the attendance of B at Court. As at this date, apart from briefly speaking to his son at Court on the day, the father had not seen B since August 2012.

3. Subsequent to the making of Orders on 26 June 2013, B travelled to the United Kingdom on his own. The mother remained in Australia. B presently resides in a private home at Suburb R, just north of City S, as a boarder. He is studying at Suburb R College a sports-orientated course and doing his Higher School Certificate studies by correspondence, being enrolled in distance education through the T Education Centre in Australia. He has a two year student visa. The mother meets his expenses in the United Kingdom.

4. Subsequent to B’s departure to the United Kingdom, the father has had some telephone and Skype communication with the child. Often this is done when the child is spending time with the father.

5. In late October 2013 the father received communication by email from the child that she wished to go to City S with B and her mother. The father responded by informing her that she would have opportunities to see her brother during the forthcoming long school holidays.

6. On 21 October 2013 proceedings were listed for final hearing to commence on 24 February 2014. The mother and father on that day reached agreement facilitating the child travelling to the United Kingdom to see her brother. In summary, the child and her mother were able to travel to the United Kingdom from 7 January 2014 to 30 January 2014, the child was to spend the first half of the Christmas school holiday period with the father until 7 January 2014, a new passport was to issue for the child and the mother was to provide a bond as security for her return.

7. During the first half of the Christmas school holiday period the father and members of the extended paternal family spoke to the child B. The extended family had previously not had contact with B since mid-2012. The father also spoke to both children whilst the mother and the child were in the United Kingdom.

8. The child in 2013 completed Year 7 at her College with a very sound end of year report and, to the father’s observation, she has settled well at the school. She is now in Year 8. The father has spoken to her year group tutor on a number of occasions. The child has formed a close group of friends at school and spends regular time with them. Some of those friends have spent overnight time at the father’s home when the child has been with him. The child played netball at the school in the winter of 2013 and has been re-enrolled to play in 2014. In response to an inquiry by the father as to whether the ongoing litigation was affecting the child the school responded “she is delightful and showing no changes in her behaviour or academic progress. She really is quite amazing”.

The father’s proposals

1. In summary, the father proposes that orders be made as follows:

   a)that all previous parenting Orders be discharged;

   b)that the mother and father have equal shared parental responsibility for the children;

   c)that the mother be restrained from taking the child D to live outside the Sydney metropolitan area and removing the child from her current school without the prior consent of the father;

   d)that in the event that the mother remains living in Australia then the child spend alternate weeks and half school holidays with each parent and other defined time on specific occasions;

   e)that in the event that the mother relocates to live in the United Kingdom and the child remains living in Australia:

   i)that the child live with the father;

   ii)that the child spend time with the mother in the United Kingdom for a period of four weeks during the Christmas school holiday period with the mother to book and pay for the child’s airfares, for the whole of the July school holiday period, and one additional week of school term with the father to book and pay for the child’s airfares, and if required, by the mother for the whole of the school holiday periods at the end of Term 1 and Term 3 with the mother to book and pay for the child’s airfares;

   f)that in the event that the child lives in the United Kingdom with the mother that the child spend time with the father as follows:

   i)in Australia for four weeks during the Christmas school holiday period to commence from the last day of the United Kingdom school term with the mother to book and pay for the child’s airfares;

   ii)in Australia for three weeks during the United Kingdom long summer holiday period with the father to book and pay for the child’s airfares; and

   iii)that in the event that the father travels to the United Kingdom to spend time with the child during any other United Kingdom school holiday period then for up to the whole of that holiday period as required by the father and the father shall have liberty to take the child outside the United Kingdom during that period.

2. Otherwise, specific orders were sought facilitating the booking of and payment for the child’s airfares, Skype and/or telephone communication with the child, each of the parents keeping the other informed of medical, contact details and other child welfare issues.

The Independent Children’s Lawyer’s proposals

1. During final submissions, the Independent Children’s Lawyer provided a minute of orders sought.

2. In summary, the Independent Children’s Lawyer’s proposals are as follows:

   a)that all previous parenting Orders be discharged;

   b)that the mother and father have equal shared parental responsibility for the child;

   c)that the mother be permitted to relocate the child’s permanent residence to the United Kingdom on or after 14 August 2014, subject to the following orders,

   d)that the child spend time with the father as follows;

   i)following the mother’s departure from Australia and until such time as the child travels to the United Kingdom the child spend continuous time with the father;

   ii)following the child’s moved to the United Kingdom she spend time with the father in Australia for a minimum of three weeks during the Christmas period with the mother to book and pay for the child’s airfares, in Australia for a minimum of three weeks during the United Kingdom summer break with the father to book and pay for the child’s airfares, that the father have liberal and flexible time with the child at any time that the father is in the United Kingdom and during that time the father be at liberty to take the child out of the United Kingdom provided the child does not miss more than five days of school during any such period and otherwise as may be agreed between the mother and father or as may be reasonably requested by the child;

   e)specific issues orders facilitating the child’s travel, electronic communication with the child by each of the mother and father;

   f)that prior to the child’s departure from Australia the mother is to file an affidavit with the Court evidencing that the mother has:

   i)obtained from a court of competent jurisdiction in the United Kingdom recognition of the orders pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (“The Child Protection Convention”); or

   ii)obtained from a court of competent jurisdiction in the United Kingdom a declaration of enforceability of the orders in the United Kingdom pursuant to Article 26 of the Child Protection Convention and

   iii)registered a copy of the orders in a court of competent jurisdiction in the United Kingdom pursuant to Article 26 of the Child Protection Convention,

   g)that at least 21 days prior to the child’s departure from Australia the mother is to pay the sum of $25,000 into a controlled monies account and that sum be released to the father in the event that the mother fails to comply with orders to be utilised by the father in respect of any court and all legal costs incurred by the father in bringing any application for enforcement or contravention, and that any balance remaining in the said account be refunded to the mother upon the child’s eighteenth birthday;

   h)that at least 7 days prior to the child’s departure from Australia the mother shall provide to the father:

   i)written notice of the address at which the child be staying upon her arrival in the United Kingdom, including the names of any other person who will be living in that accommodation; and

   ii)provide to the father with written confirmation that the child has been enrolled in school or that all necessary steps have been taken to ensure that the child will be enrolled in school upon arrival in the United Kingdom with such confirmation to include any correspondence received by the mother confirming or evidencing the child’s enrolment, any written information or package provided by the school and the name and contact details of the relevant person at the school whom the father may contact to make enquiries with respect to the child’s attendance and progress at the school;

   i)otherwise specific orders as to the parties notifying the other of their contact details that the father’s details are recorded on the child’s school enrolment and that the parties keep each other informed of medical or other child welfare issues relating to the child; and

   j)That the mother signed an undertaking to the Court that in the event of the child having been in the United Kingdom for a period of three months or more requesting to return permanently to Australia she will notify the father in writing of such request, seek the father’s agreement to the child returning to Australia to live with him and upon receipt of the father’s agreement to all things necessary to facilitate the child’s return to Australia within 30 days or such other period as agreed between the father and mother in consultation with the child.

The mother’s proposals

1. In final submissions, the mother’s proposals were put to the Court in terms of her agreement or otherwise with the proposals of the Independent Children’s Lawyer.

2. The mother was in substantial agreement with the proposals of the Independent Children’s Lawyer, save for the following orders sought:

   a)that the cost of airfares for the child travelling to Australia at Christmas and for the other block period be paid for by each of the parties in alternate years; and

   b)that the mother be required to provide a surety of $10,000 and that that surety be deposited to an interest-bearing account and that the balance in the account be released to the mother on the child’s sixteenth birthday.

The mother’s oral evidence

1. It is clear from the mother’s primary trial affidavit that her asserted motivation in seeking to relocate to the United Kingdom was to facilitate, support and encourage what she perceived to be her son’s sports prospects ultimately in professional sports in the United Kingdom. Her affidavit goes into great detail in relation to her son’s career and asserted prospects.

2. The mother deposed in her primary affidavit to her intention to reside with the children between U Town and City S along the V Region train line. She proposes to seek rental accommodation near the child’s proposed school at U Town, stressing the importance of such accommodation so as to facilitate the child participating in community and school functions easily.

3. The mother has facilitated the child undertaking the entrance examinations for U Town School without informing the father.

4. U Town is about 50 minutes drive from City S. It is the mother’s proposal that should she be able to relocate, both children would live with her in the United Kingdom.

5. In late January 2014 the mother was granted Country M citizenship, having first sought that in 2012.

6. It is the mother’s intention that if her daughter was not permitted to relocate to the United Kingdom, the mother would do so in any event and would not return to Australia. The mother had not informed her daughter of this aspect of her intentions. The mother perceived her proposed relocation to the United Kingdom as a “whole new chapter of my life”, although; it appears, without any consideration of her future relationship with her daughter.

7. It is clear from the mother’s evidence that she has significantly enmeshed her daughter in the issue of relocation, not only in relation to her brother, but the mother’s proposal to relocate with the daughter to the United Kingdom permanently. It is of concern that the mother facilitated the child through her school in Sydney undertaking the entrance exam for the U Town School in England without the knowledge or consent of the father. That conduct placed the child in a most difficult position in relation to the secreting of that information from the father.

8. The mother acknowledged that she had described their situation in Australia as “like being in gaol” to her daughter. Yet the mother acknowledged that she had enmeshed the children in the Court proceedings where it adversely impacted on their relationship with the father. B has been in England for eight months by the time of the first hearing days and the mother had made no arrangements for him to holiday in Australia to spend time with the father.

9. The mother’s oral evidence revealed for the first time one of the prime motivations of her seeking to relocate to the United Kingdom. As a consequence of the mother obtaining Country M citizenship, she is able to obtain residence the United Kingdom. As a result and provided that her son was part of her household until he was 21, he would be able to remain “resident” on a five year residence card in the United Kingdom whilst he pursued his prospect of a future professional sport career and as a resident could be offered a contract to play.

10. Thereafter, B would be required to make application for residency in the United Kingdom or if he obtained Country M citizenship, that being problematic, he would be entitled to reside in the United Kingdom. Residence rights in the United Kingdom determine his ability to be offered a sports contract in that country. Otherwise, he would be required to seek a career in Europe or elsewhere.

1. B’s prospects of being eligible and offered a professional sports contract can best be described as conjecture. 

2. The mother acknowledged that in the event that she was able to relocate the child’s residence to the United Kingdom and if after a reasonable the child expressed a wish to return to Australia, she would respect that wish. She has discussed this issue with the child.

3. The mother meets the expenses of B in England from her capital arising from the sale of her former home. She proposes that if she relocates to England she will meet her living expenses and those of the child, if she is able to accompany the mother, also from capital. The mother expects a modest continuing income from her internet-based business.

The mother’s disclosure issues

1. Following the conclusion of the mother’s cross-examination, her counsel sought an adjournment before she was re-examined. After informing the Court that there were “disclosure issues”, the hearing was adjourned late on day two with the mother to provide an affidavit to the Court the following morning as to the issues raised by her counsel.

2. On the resumption of the matter the following morning, an affidavit sworn by the mother on 2 April 2014 was marked into evidence as Exhibit I. The mother’s solicitor and Counsel sought leave to withdraw and such leave was granted. The mother was then unrepresented and to facilitate her obtaining fresh legal representation the proceedings were adjourned part heard to 29 May 2014.

3. In her affidavit sworn on 2 April 2014 the mother disclosed a relationship with Mr W, who resided in City S. The mother had met Mr W when she and B travelled to City S in April 2013. Mr W resides in Suburb X in City S. The mother deposes to the blossoming of her relationship with Mr W prior to her return to Australia with B in June 2013. The mother disclosed her relationship with Mr W to both children.

4. On the mother’s trip to the United Kingdom in January 2014 the child D met Mr W, by which time Mr W had developed a relationship with the child B. Mr W, the mother and the children spent considerable time together during January 2014. The mother and the child maintained regular contact with Mr W after returning to Australia in January 2014. The mother and Mr W regard themselves to be in an exclusive relationship and the mother deposes in her affidavit that they have had discussions about living together in the future following the mother’s relocation with the children to England.

5. The mother proposes in her affidavit that if application for relocation is successful, she would reside with the children in U Town, some distance from City S. She acknowledges discussions with Mr W in relation to them living together at some time in the future.

6. The mother further deposes that one of her main reasons for now seeking to relocate to the United Kingdom is her relationship with Mr W and her wish to pursue that relationship. The mother believes that she and Mr W have a long-term future together and missing out on the opportunity to have a relationship with him would “truly negative impact on my happiness”. The mother asserts that the child is aware of her feelings for Mr W and that the child has herself developed a warm relationship with him.

7. It is to be noted that the mother’s primary trial affidavit was sworn on 7 February 2014 and filed on the same day. By the date of this affidavit the mother had returned from the United Kingdom with the child and her relationship with Mr W and his relationship with the children it is to be inferred would have been uppermost in her mind in terms of her future proposals, yet the mother chose to hide that relationship from the court in the context of not only her sworn evidence on affidavit but during the course of extensive cross examination, during which she had the opportunity of disclosing the relationship to the Court.

8. The hearing resumed on 29 May 2014 and with leave the mother’s cross examination resumed as a consequence of her disclosures.

The mother’s further oral evidence

1. The mother acknowledged that communication between herself and Mr W had mentioned marriage and that it was contemplated that when the mother moved to the United Kingdom she would reside in his apartment in Suburb X.

2. None of this evidence was included in her “disclosure affidavit”. Overall, as submitted by counsel for the father, the mother’s disclosure makes a “nonsense” of her earlier evidence as to her motivation for relocation.

3. The mother displays a complete disregard for her obligation to be frank and candid with the Court, especially in circumstances where the best interests of her child D is to be determined on the evidence adduced before the Court.

4. Notwithstanding the adjournment afforded to the mother, no affidavit or evidence was adduced from Mr W, who clearly could have been on the telephone from City S as to the issues before the Court.

The father’s oral evidence

1. As noted above, the father was cross examined at some length in relation to the history of the relationship after separation. Much of that cross examination was of little assistance to the Court in determining the primary issue in this matter.

2. The father acknowledged that his daughter had expressed her wish to him that she be able to go to City S with her mother and join up with her brother.

3. The father expressed his concerns as to the prospect of his daughter losing the present stability that she has in her life in Australia, particularly in terms of schooling, her friendships and her relationship with him and her extended paternal family.

4. He acknowledged that his daughter would be unhappy should she not be permitted to relocate with her mother and that circumstances could well lead to a deterioration of his relationship with his daughter.

5. It was his view that his daughter should be able to determine at the age of 16 herself whether she wished to relocate to the United Kingdom with her mother but that, in any event, his daughter would be relieved once the Court made a determination one way or the other.

6. The father further acknowledged that there were significant communication difficulties between himself and the mother, and in circumstances where his daughter was to remain in Australia with him, he would need to be able to communicate with the mother on a regular basis in relation to issues relating to their daughter.

The Family Report

1. The Family Report was dated 23 July 2013.

2. Relevantly, the Family Reporter identified the issues in dispute as follows:

   a)Whether or not the mother should be permitted to relocate the child’s place of residence to England;

   b)The possible impact on the child’s relationship with her father should the relocation be permitted;

   c)The possible impact on the child’s relationships with her mother and B should she remain in Australia whilst they relocate to England;

   d)The disruption to the child and loss of social capital should she be relocated to England;

   e)Both parents’ willingness to facilitate the child’s relationship with the other parent;

   f)The practicabilities of facilitating the child’s time with both parents if her parents live on different continents; and

   g)Each parents capacity to meet the child’s needs.

3. The enmeshment of the child B in the conflict between the mother and father is evident from B’s reluctance to provide to the Family Reporter details of his sport activities or prospects in England, the child saying that he did not want his father to be privy to the information. At the time of the Family Report, B was unclear as to what arrangements could be made for him in England if he was able to go there.

4. The child D was described by the Family Reporter as quiet, polite and well-spoken, who appeared reserved when speaking about her family situation. The reporter observed that the child gave the impression at times that she had attended the interview with particular points that she intended on making.

5. At the time of the Family Report the child D had spent a block period with the father whilst the mother was overseas, but to some extent, she communicated to the Family Reporter a certain remoteness about her relationship with the father.

6. The child said to the Family Reporter that it was her understanding that the father sought for her to remain in Australia with him. The child said that she did not believe that her father understood how important B and her mother were to her. She said that she did not feel close enough to live with him full-time. She explained a change in her views that she had expressed earlier in the Children and Parents Issues Assessment Report as a result of the opportunity to live with her father recently for the block period of 6 weeks. The child clearly had a protective view of the necessity for her mother to be with B in England. She had optimistic assessments of what would be in store for her in England and that she would really miss her brother if they were required to live separately.

7. She had firm views that should she be able to go to England it would be enough for her to return for to school holiday periods with a particular preference to be in Australia for the summer school holiday period to accompany the paternal family on the annual holiday to Y Town.

8. In evaluation the Family Reporter observed:

   103.At the time of the Child and Parents Issues Assessment, [the child] said that it would be her preference to remain living in Sydney because of the losses she would incur from relocating and it was understood that, at this time, she was aware that this may involve living with [Mr Sherwood]. [The child] said at the time of the Family Report Interviews, that her views had changed and she no longer had a preference to remain in Sydney living with [Mr Sherwood] if [Ms Sherwood] and [B] relocated to England. Given the significant and protracted conflict that [the child] had been exposed to and the pressure on her in regards to her views, it is unlikely that [the child] had been able to fully develop her own independent views nor feel free to articulate any she may have formed. Furthermore, although [the child] was articulating a view she was unable to provide clearly reasoned explanations for her articulated views. Therefore, it is not recommended that the Court place significant weight on [the child’s] articulated views. It is recommended, however, that the Court give consideration to the strength and state of her relationships with both parents when considering future living arrangements for [the child].

9. The more significant relationship between the child and the mother was noted by the Family Reporter as well as her close relationship with her brother B. However, the Family Reporter noted that given their significantly different age and stage of development, it is likely that their needs will become divergent and there will be a necessitation for their relationship to change independent of the child’s living arrangements. If they were to reside separately, the Family Reporter assessed it as adequate for them to have the opportunity to spend holiday time together and to communicate via telephone, Skype and email.

10. Should the child remain living with the father in Australia, the Family Reporter noted that the child would need time and appropriate support to adjust and in this regard the child’s relationship with the father’s partner, Ms Z, was seen as important.

11. The Family Reporter noted that if the child was to relocate to England:

    114. ….there would be a significant cost to her social capital. It is understood that all of [the child’s] current family network lives in Australia and [the child’s] friendship group/s lives in Australia. [The child] had, this year, commenced high school and with it the developmental task of developing new peer friendships. Both [Mr Sherwood] and [Ms Sherwood] reported that [the child] had recently established a new close group of friends. These relationships would be significantly impacted and possibly lost if she was to move to England. Furthermore, it is understood that [the child] continued to maintain friendships with fellow class mates from her primary school, these relationships would also be significantly impacted upon. Relocation would also mean that [the child] would not be able to continue to play sport for the same club that she has been.

    115. Furthermore, the child commenced high school this year and both parents had reported that she has settled in well to her new school. Relocation to England would necessitate her having to attend a new school, her third school in three years. …

12. Somewhat prophetically having regard to the matters discussed above and the mother’s disclosure issues, the Family Reporter said:

    117. … [Ms Sherwood] has provided a clear indication that she intended on relocating to England and had no intention of continuing to reside in Australia even if the Court did not permit for [the child] to relocate. [Ms Sherwood] spoke both at the time of the Children and Parents Issues Assessment and Family Report Interviews about her individual needs to travel and start a “new chapter” in her life and thus her perceived need to go overseas. The discrepancy between [Ms Sherwood’s] claims about [the child’s] need for her and [Ms Sherwood’s] articulated plans to meet her own needs raises significant concerns about [Ms Sherwood’s] capacity to prioritise [the child’s] needs above her own in all contexts and raises concerns about [Ms Sherwood’s] parenting capacity.

    118.[Mr Sherwood] alleged that [Ms Sherwood] had overinflated [B’s] prospects of pursing an international [sport] career to fulfil her own desire to relocate overseas. If [B’s] education and relationships had been jeopardised on insufficient grounds, and in an attempt to strengthen [Ms Sherwood’s] chances of relocating overseas with the children, this would also raise significant concerns about [Ms Sherwood’s] capacity to identify and prioritise the children’s needs. 

13. Importantly, the Family Reporter observed:

    121.However, [the child’s] ability to maintain a meaningful relationship with her non- resident parent is likely to be significantly influenced by the resident parent’s willingness to facilitate this relationship. Both parents’ narratives suggested that they had a very low opinion of the other parent and this raises concerns about the impact that this might have on the children’s relationships. However, [Ms Sherwood’s] narrative, especially at the time of the Child and Parents Issues Assessment, raised particular concerns about her attitude about [Mr Sherwood’s] role in the children’s lives. [Ms Sherwood] commented that the main priority was maintaining her relationship with the children and she was unable to acknowledge the impact on the children’s relationship with [Mr Sherwood] or their adjustment to this, if she relocated the children overseas. Further, [Ms Sherwood’s] proposals in regards to costs associated with facilitating the children’s travel to Australia for the purpose of them spending time with [Mr Sherwood] was of concern. [Ms Sherwood] did not appear to have made sufficient attempts to encourage [B] to repair his relationship with [Mr Sherwood]. This raised concerns about how she might manage the situation if [the child’s] relationship with [Mr Sherwood] became strained following a relocation to England.

14. The Family Reporter concluded it would be in the child’s best interest if both parents remained in Australia. Such a circumstance impossible by reason of the mother’s intention to depart, regardless of her daughters circumstances.

The Family Reporter’s oral evidence

1. As to the child’s continuing wishes, the Family Reporter observed:

   I do believe that she wants to remain living with her mother.  I guess we just need to be aware when we are considering what we’re calling her views and wishes that it is in the context of incredible conflict and incredible pressure and I think in a situation where the mother has indicated that she will move to England and it has sort of been left up to [the child] to convince the professionals that she should be allowed to go and I just really caution us to not, you know, against not being very cautious about considering the incredible pressure that she’s under in having to try and articulate her views.  So I just would say, we just need to give consideration to the pressure and the context in which [the child] has had to express her – her views.  Having said that, I do believe that she wants to continue to live with her mother.

2. As to the weight to be afforded to the child’s wishes, the Family Reporter was more circumspect:

   ICL: And the two reasons that [the child] gave to you for wanting to go to the United Kingdom was firstly, because she wanted to be with her mother?   Mm.

   And secondly, that she wanted to be with [B]?   Well, it was that and then also because her Mum and [B] had come back sunburnt and she had seen nice pictures of landscape and cottages, but she was saying that she wanted to remain living with [B] and her mother.

   And so far as a foundation or that those two aspects forming a foundation for her views, that’s quite reasonable – they're quite reasonable thing to underpin her views.  Do you agree with that?   They are.  I guess what I’m getting at is she wasn’t able to, sort of, engage in a discussion about what that meant or why that might be or it was just – I guess, she was able to provide that explanation with an absence of any other narrative around it.  But those – to want to continue to live with her mother and her brother are very reasonable comments to make.  Yes.

   And so what further narrative would you have, or wished to have seen or received from [the child] that may have given you more confidence that weight should be attached or more weight attached to her views?   Look, I guess, one thing that would have given me more peace of mind in terms of being able to make a recommendation to put more weight on them was if she was, for example, able to engage in a more thorough discussion about, kind of, the advantages and disadvantages of – of a relocation, you know, versus staying.  You know, change of residence and things like that.  She was especially in regards to the – I guess, a little bit in terms of the change of residence but not in terms of the relocation.  She wasn’t – I didn’t feel that she was able to have a discussion about that.  She just wanted to say that that’s – that’s what I, you know, I just want to continue to live with her mother and [B].  And I think part of that is because of her distress over the ongoing conflict about this.  Part of it might have been a concern that she might say something that might be, you know, not help her case.  Part of it, I think, is that incredible burden that she felt to convince the professionals that, you know, she should be allowed to go so that she didn’t have to live separately from her mother.  But it did – it did leave me a little concerned that she wasn’t able to be, sort of, open and frank and have a more thorough discussion.

3. The strong inference arises that the child is unfortunately enmeshed in the conflict as to relocation and is reflecting her mother’s views and wishes, with little insight or reflection into her own needs.

4. In the event that orders were made that did not reflect her wishes, the Family Reporter observed:

   ICL: …so look, it is a possibility when a child does not have orders according to their articulated wishes that are – that are granted that they may rebel, but I wouldn’t like to say – and she has seen that that’s what [B] did and so that can increase the chance, but I wouldn’t like to be – say that that would definitely be the case, because she doesn’t have that kind of – she didn’t give me the impression that that would be her type of personality.  She tended to give me the impression that she would internalise more than externalise as opposed to how [B] may deal with adversity which appear to be more externalising rather than internalising.

   …

   … So I’m not suggesting to internalise would be a better situation.  I mean, that would be potentially quite problematic for her as well.  Absolutely.

   … most likely kind of possibilities is that she may end up becoming quite depressed.  In terms that she may also – it might influence her kind of self or sense of self and her identity based on, you know, I guess the situation and not having her, you know, appearing to not have her views heard and then her mother choosing to – to move away and leave her with the father and those sort of things.  So those are, sort of, two of the most concerning things that could occur for her.

   …

   And so far as the duration of time the father has spent with [the child] outside school holiday times, it may pose another difficulty in terms of the father’s capacity to identify her internalising behaviour.  Do you accept that proposition?   You're saying because he hasn’t had the opportunity to spend protracted periods of, sort of, day to day time with her, he might be less able to pick up on cues that there are some difficulties occurring and that she is internalising some of those difficulties.  Is that – that’s what you're asking me?

   Yes?   Yes.  That’s reasonable.

1. Not being able to relocate with the mother would present a significant adjustment issue for the child. The father, in the view of the Family Reporter, did not have an understanding of the extent of the adjustment issue for the child, a circumstance that would present difficulties for him and the child.

2. The Family Reporter was clear that there was a benefit to the child living with her brother, B, with whom she had a close relationship and with whom she wished to be reunited.

3. It would, said the Family Reporter, be difficult for the parents to the child’s wishes when she was 16, less than two years hence.

4. The reporter expressed concerns at to the nature of the child’s relationship with the mother, with the mother at times relating to her daughter more on friendship level and putting a lot of responsibility on to the child in terms of making decisions in matters that were more for the adults. Further, the Family Reporter perceived that the mother was prioritising her needs over those of her daughter and expressed concern for the mother’s ability to understand situations from another’s perspective. The mother’s determination herself to relocate with or without her daughter gave the Family Reporter some concerns about her reflective capacity. The mother demonstrated in the late disclosure of the existing emotional relationship in the United Kingdom exacerbated the Family Reporter’s concern as to the mother’s reflective capacity and her prioritising her own needs over that of her daughter and perhaps the mother’s resultant psychological unavailability to her daughter by reason of her new relationship.

5. The mother’s failure to endeavour to repair the relationship between the father and his son B subsequent to B’s departure for England was a matter for concern for the Family Reporter. The Family Report was released in July 2013 and notwithstanding concerns as to the nature of the father’s relationship with B expressed therein, the mother since that time had not facilitated the return of B to Australia for holidays to spend time with his father, nor it appears done anything positively to enhance their relationship.

6. As to the father, the Family Reporter expressed some concerns of the father’s lack of depth in him being able to explain and comment about the children, their needs and their emotions and having little language or ability to discuss the children’s affects. In a circumstance where the child remained in Australia with him, the father may, in the view of the Family Reporter, need outside professional assistance to deal with issues that may arise with his daughter.

7. However, in the event that the child was not permitted to relocate with her mother, it is possible that she may feel abandoned by her mother and that may result in the child being resentful of her mother, or on the other hand, pining for her mother and desperately wanting to spend more time with her. The potential negative impact on the mother and daughter relationship would be concerning for the child and not ideal for her.

8. Should the child be permitted to relocate to live with the mother, the Family Reporter expressed the view that the child was of an age that it was more likely that she would be able to maintain a long distance relationship with the non-resident parent, particularly electronically by telephone, email and Skype communication. The travel would also be less burdensome, being undertaken in school holiday or holiday-related periods.

9. However, the Family Reporter expressed the cautionary note that the maintenance of a significant relationship with the non-resident parent would be dependent on the way that the resident parent supported that relationship and spoke about that relationship in the household.

10. Counsel for the father asked the Family Reporter about the child’s views having changed since the Child Responsive Program interviews in June 2012. In the Family Reporter’s memorandum at that time, it was clear that the child “articulated a preference to remain living in Sydney and not to relocate to England”. The Family Reporter responded:

    My impression the first time I interviewed her was that [the child] seemed more able to have a more open and unregarded discussion about the situation and her preferences. However, by the time of the family report interviews, she was much more guarded and… the impression given was a combination of unable and unwilling to engage in a more thorough discussion.

11. However, by the time of the Family Report interviews it was the Family Reporter’s recollection that the child was aware that the mother was going to England with or without her.

Relocation

1. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Whilst that is the paramount consideration, it is not the only consideration. In AMS and AIF (1999) 199 CLR 160, his Honour Justice Kirby said:

   144. … a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. … (footnote omitted)

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act. The objects of Part VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives, that the children are protected from physical or psychological harm, that they receive adequate and proper parenting, and that parents fulfil their duties and meet their parental responsibilities.

3. In determining what is in a child’s best interests the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

4. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

5. In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of s 65DAA, which requires a consideration of a child spending equal time with their parents. If the Court finds that is not in the child’s best interests or reasonably practicable then the Court must consider the child spending substantial and significant time with the parents.

6. This particular case has as one of its primary elements the issue of relocation. Much has been written and said about relocation cases, such that there may be a perception that they are a unique type of case to be determined differently from others. The question is not as to whether the mother should be able to relocate with the child, but what orders are in the best interests of the child. The best interest of the child must be assessed in the context of the parties’ competing proposals (Sayer & Radcliffe and Anor (2013) 48 Fam LR 298; Muldoon & Carlyle (2012) FLC 93-513).

7. The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) FLC 92-755, (1997) 21 Fam LR 676; Morgan & Miles (2007) FLC 93-343, (2008) 38 Fam LR 275) is clear in that such cases remain to be determined, like all parenting matters, by considering the best interests of the child in the context of the legislative framework.

8. In Taylor & Barker (2007) 37 Fam LR 461, their Honours Bryant CJ and Finn J said:

   53. … when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible. (citations omitted)

   Their Honours went on to say:

   83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.

9. In Morgan & Miles (supra), Boland J at [79] - [81] identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour said:

   79.In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully 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.

10. These principles were cited with approval in Malcolm & Monroe and Anor (2011) FLC 93-460, where the Full Court said:

    83. 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.

11. The Court has regard to the objects and principles set out in s 60B.

The Additional Considerations: section 60CC(3)

1. The best interest considerations are set out in s 60CC. These proceedings commenced before 7 June 2012. The relevant additional considerations in s60CC(3) are set out below.

The child’s views and any factors (such as the child’s maturity or level of understanding) the Court thinks relevant to the weight to be given to such views

1. The child’s wishes at trial are evidenced from various sources - the Family Report, the mother’s evidence as to what was said to her, the child’s communications by email and the father’s own acknowledgment of the child’s wish to go to the United Kingdom with her mother and that the child would be distressed if she could not do so.

2. The child is now 14 years of age and in High School.

3. The child was described by the Family Reporter as quiet, polite and well-spoken, who appeared reserved when speaking about her family situation. The Family Reporter is circumspect as to the weight to be afforded to the child’s wishes as discussed above. Yet the child is of more mature years, and she clearly misses her brother and wishes “to live with her mother”.

4. It is the Independent Children’s Lawyer’s submission that the child’s wishes should be afforded significant weight.

5. The evidence is supportive of a finding that the child’s wishes should not be discounted but afforded not insignificant weight in the context of these proceedings.

The nature of the child’s relationship with each parent and any other persons (including any grandparent or other relative of the child)

1. The nature of the child’s relationships with her parents, her brother and the extended paternal family, in particular, is referred to above.

2. The child is aligned with the mother in circumstances where the mother has been, except for short periods, her primary carer since birth, and more particularly since separation in September 2006 when the child was six years old. Her primary relationship is with the mother.

3. The child’s relationship with the father is more distant and less engaged. yet the relationship is well-established and secure as opined by the Family Reporter.

The willingness of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent

1. The mother has since separation maintained a “standoffish” and conflictual relationship with the father. She has controlled his time outside of Court Orders with the child. It is clear that the child is aware of the nature of the interparental relationship but, as said by the Family Reporter, remains almost aloof from it. The mother has considered her own interests and that of B over her daughter’s interests, a circumstance clearly evidenced by her late disclosure as to her primary or another primary reason for relocating to England and the mother’s expressed intention to relocate regardless of the child being permitted to do so.

2. The mother’s capacity in the context of this consideration is, at best, problematic.

3. Should the child relocate, it is a necessity that the mother be provided with some encouragement to comply with orders facilitating the child’s relationship with the father. This can be done by way of a security bond and the reciprocal registration of orders under the 1996 Child Protection Convention in the overseas jurisdiction.

4. The father acknowledges the mother’s primary role in the child’s life. He has concerns as to the relationship if the child relocates and has concerns as to the child’s relationship with the extended paternal family. Should the child remain in Australia he has the capacity and willingness to continue to facilitate the child’s relationship with the mother.

The likely effect of change in the child’s circumstances, including the likely effect on the child of any separation from parents or grandparents

1. As submitted by the Independent Children’s Lawyer, the child living with the mother removes the child substantially from the present conflictual parental relationship.

2. The impact on the child of not being permitted to live with her mother is examined above. She has clear wishes to which some weight should be afforded. The possible behavioural and psychological consequences of her not being permitted to relocate were discussed with the Family Reporter in her oral evidence. The capacity of the father to deal with those possibilities is a matter of conjecture.

3. The child has established “social capital” in Sydney with her school, friendship groups and sport, yet the Family Reporter says she can recommence these in England if she is to reside there.

4. The child is somewhat reserved at the prospect of living with the father full-time. Perhaps their relationship is a difficult relationship to describe but “somewhat distant emotionally” may be appropriate. It is probable that living with her father would present some issues for the child.

5. The child may well express a wish to return to live in Australia with her father and resume her life here after a period in England. Her wishes should be respected by the parents. The mother has proffered an appropriate undertaking to this effect and an order to this effect is appropriate.

6. The child can maintain her paternal relationships by appropriate time with arrangements.

7. The Independent Children’s Lawyer contends, and it is accepted, that this consideration is indicative of the child not being separated from the mother.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. This is not an issue in this case. The parties in their respective proposals seek practical orders for time with the non-residential parent and do not raise any financial impediment to the proposed costs of same. The child is of an age where the marvels of electronic communication are mastered by her generation better than those that went before. Thus, telephone, internet and Skype are readily available to meet the need for regular communication with the non-residential parent.

The capacity of the parents to provide for the needs of the child, including emotional and intellectual needs

1. The mother’s capacity in this regard is overarched by her engagement of the child in the present dispute. It is clear that she has spoken to the child often as to the matter before the Court and also as to the Court issues in relation to B relocating. There is a suspicion that emails said to emanate from the child to the father have their genesis in the mother’s wishes. However, the mother has provided primarily for the child’s needs the entirety of the child’s life. The mother’s own needs and desires have taken priority but there is no evidence to suggest that if the child relocated to England the mother would not appropriately meet the child’s needs and be mindful of those needs in the context of her own new emotional relationship.

1. The Independent Children’s Lawyer submits, and it is accepted, that if the child had been younger and with less strenuously expressed views, this would be a significant consideration. That is not the case here.

2. The father’s capacity is untested. The child has spent only short periods full time in his household. The child’s perception of that time was not encouraging of the child living permanently with the father. His capacity in meeting the child’s psychological needs if she is separated from her mother is a matter of conjecture. He could be assisted by his partner but does not live with her.

3. In Australia with the father the child would continue schooling where she is. In England the mother has plans for the child’s enrolment and the father takes no issue with the proposed U Town School.

4. Both parties have the financial capacity to meet the child’s needs.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents

1. The maturity of the child is referred to above. The child has reached puberty and her relationship with her mother is to be inferred as important in this regard. The child is of an age where she may commence to develop personal relationships. The mother’s more engaged involvement presents a better option in this context than the child’s more distant engagement with her father.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents

1. Much of the discussion above is relevant to this consideration. The mother has demonstrated a less than satisfactory attitude. Her engagement of the child in the dispute, her rigid relationship with the father, her inappropriate manipulation of the issues relating to B, her self-interest over the interests of her daughter, her lack of candour with the Court as to reason for her desire to relocate, her communicated intention to relocate with or without her daughter all show her to lack understanding of an appropriate attitude to the child and her responsibility as a parent. The mother presented in evidence as deceptive, manipulative and cold.

2. It can only be hoped that the resolution of these proceedings may bring an end to her self-interest that overshadows her parental responsibilities.

3. The father seeks understandably to maintain his and his family’s relationship with both children. Yet faced with his daughter’s wishes, he seeks to hold her in Australia for what would be a very short period before her wishes simply could not be ignored. Otherwise, he has demonstrated an appropriate attitude to his daughter and his responsibility as a parent, notwithstanding the carping criticism of the mother.

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

1. It is preferable to make orders that will hopefully end this litigation. The child is now 14. At 16 years of age both parties seem to acknowledge that her wishes, if reasonably held, will be persuasive. Orders should reflect this. The Independent Children’s Lawyer contends that an order facilitating the child relocating will meet this need for finality.

2. There are no other relevant facts or circumstances.

The Primary Considerations: section 60CC(2)

1. The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2)(a): “meaningful” relationship

1. In Mazorski v Albright[2007] FamCA 520 Brown J considered ordinary definitions of the term “meaningful” and observed:

   26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. The relationship of the child with both parents is secure. It is important that these relationships are protected and preserved. Orders should reflect a mechanism for this to occur. The child’s relationship with the non-residential parent will be afforded through appropriate orders and enforcement procedures.

4. Should the child live with her historical primary carer, the mother, the relationship will continue to be meaningful to this 14 year old young woman. The mother it is hoped will have regard to the consequences of her self-serving conduct over the last two years and the criticisms of her in these reasons and look introspectively in order to place her daughter’s interests appropriately ahead of her own. Should she not do so, the child may elect to live with her father. The child’s relationship with the father into the foreseeable future will be ensured by Court orders.

5. The father as primary future carer presents as problematic for the child. He is untested, except for short periods, and then his report card from the child has been lukewarm. The child is likely to have issues with living in the father’s household and being denied her mother and the ability to live with her at an important developmental stage. This is referred to above. This prospect would overshadow the child in his household.

6. This primary consideration favours the mother.

Section 60CC(2)(b): need to protect

1. The child has been exposed to the mother’s own self-serving behaviours and conduct in circumstances where the child must have felt to a degree abandoned by the mother. The departure on short notice to England with B and her intention to relocate whether the child is permitted or not must have been difficult for her. The mother’s conduct has been manipulative and purposeful. It is hoped that once this matter is resolved, the mother will refocus on the child, who should have always, but has not been, the focus of her attention.

2. The prospective concern as to the child remaining in the father’s household and being deprived of her mother (save for holidays) has been outlined above.  This does present as a significant issue, in respect to which the child may suffer some psychological harm.

3. Overall, this second primary consideration favours the mother’s application.

Section 60CC(4): fulfilment of obligations relating to the child and circumstances since separation

1. Both parties have substantially fulfilled their obligations to the child as contemplated by this provision. The history post-separation has been considered above.

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, 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.

2. Both parties seek an order for equal shared parental responsibility and that is supported by the Independent Children’s Lawyer.

3. In this matter, there are no other circumstances that would prevent the presumption from applying. Such an order will be made.

Section 65DAA: equal or substantial and significant time

1. By reason of the mother’s intentions, neither party contends for equal or substantial and significant time and orders fall to be determined by reference to the best interest considerations and the objects and principles of the Act referred to above.

Discussion

1. The regrettable circumstance in this case is that had the mother not conducted herself in the way referred to in these reasons and had she not displayed such lack of candour with the Court, the pathway to a resolution might have been much clearer.

2. Yet the mother has, as it were muddied, the waters, showing little respect to her obligation to be truthful and frank with the Court.

3. Notwithstanding, the issue for determination must be resolved by reference to the child’s best interests, not with the intent of punishing the mother for her misguided and misleading conduct.

4. Having regard to matters considered above, it in the best interests of the child that she be permitted to relocate to live with the mother in England for such period as she wishes. The child is currently in the latter half of a school year and should be given the opportunity to complete the year with appropriate academic assessment. This would also facilitate the child be appropriately farewelled from her school and the opportunity for the child to make her own arrangements to preserve her “social capital” with friends and extended family here in Australia, as best she can, with a planned and orderly departure to the United Kingdom.

5. The father should have time with the child both in Australia and in the United Kingdom.

6. That being said appropriate safeguards, as sought by the Independent Children’s Lawyer, should be put in place to ensure the mother’s compliance with orders facilitating the child’s relationship with the father and facilitating the father’s ongoing relationship with the child.

7. Accordingly, orders will be made as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 August 2014.

Legal Associate:       

Date:    19 August 2014