SHIELDS & VISSER
[2010] FMCAfam 28
•12 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHIELDS & VISSER | [2010] FMCAfam 28 |
| FAMILY LAW – Parenting – child nearly eight – was born in the Netherlands and spent her formative years there until the mother decided to travel with the child to Australia in 2008 – the father seeks to restrain the mother relocating the child’s residence back to the Netherlands – considerations of the impact of the parent’s conflict on the child’s emotional wellbeing – the child’s relationships with each of her parents – the emotional state of the mother – the mother’s willingness to facilitate the child’s relationship with her father. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| A & A: Relocation Approach (2000) 26 Fam LR 382 McCall & Clark [2009] FamCAFC 92 Taylor & Barker (2007) 37 Fam LR 461 |
| Applicant: | MR SHIELDS |
| Respondent: | MS VISSER |
| File Number: | SYC 1405 of 2009 |
| Judgment of: | Walker FM |
| Hearing dates: | 1 & 2 October 2009 |
| Date of Last Submission: | 2 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Legal Aid New South Wales ([B]) |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Levy Partners |
THE COURT ORDERS THAT:
The child [X] born [in] 2001 is to live with her mother and her mother is permitted to remove [X] from the Commonwealth of Australia to reside with her in the Netherlands.
The name of the child [X] born [in] 2001 is to be removed from the Airport Watchlist forthwith.
The parents are to have equal shared parental responsibility for the child.
Unless otherwise agreed, the mother is to make [X] available to spend time with her father as follows:
(a)In Australia, during the Netherlands July/August school holiday period, each year from the Monday following the conclusion of school to the Wednesday prior to the resumption of school.
And provided that the father gives the mother 28 days notice of his arrival and departure dates:
(b)In the Netherlands for the whole of two of the other school holiday periods.
(c)Should the father extend his stay in the Netherlands beyond the school holiday periods referred to in Order 4(b), upon [X]’s return to school he is to spend time with her each weekend from Friday after school to before school on Monday and up to two other occasions each week from after school to before school on the following day for a period of up to six weeks on any one occasion.
(d)The father is to spend such further time with [X] as may be agreed between he and the mother.
(a)The mother is to ensure that [X] communicates with the father via electronic means, including email, webcam and Skype each Tuesday and Thursday between 7.00am and 7.30am local time and at any other reasonable times upon which the parents may agree.
(b)Unless otherwise agreed, the mother is to ensure that [X] telephones her father each Saturday between 7.00am and 7.30am local time.
(c)The father may telephone [X] at any other reasonable time and the mother is to facilitate such telephone contact.
For the purpose of [X] spending time with her father pursuant to Order 4(a) above, the mother is to cause [X] to be delivered to her father at Sydney International Airport at the commencement of the father’s time with [X] and the father is to return [X] to the mother at Sydney International airport at the conclusion of his time with her, unless otherwise agreed between the parents in writing.
The mother is to ensure that the father is provided with all such authorities necessary to enable him to communicate with the school attended by [X] and to receive all information or documents which are available to parents of the school attended by [X].
Should the mother not enrol [X] at the school previously attended by her in the Netherlands, the mother is to provide details of alternative schools to the father prior to any enrolment of [X] in another school.
The mother is to provide the father with the names of medical practitioners consulted by [X] and with such authorities as may be required to enable the father to obtain information about [X]’s wellbeing from such medical practitioners.
The mother is to contact the father by email prior to [X] receiving treatment for any significant medical condition except in the case where emergency treatment is required.
At all times each of the parties is to ensure that the other has a telephone contact number available so that each party may speak with [X] while she is in the care of the other party and each party is to keep the other informed of the current residential address and email address of each.
All outstanding applications be otherwise dismissed.
Arrangements for travel including costs
The mother is to make all arrangements for [X] to travel to Australia in accordance with Order 4(a) and is to meet the cost of [X]’s return airfares and that of any accompanying person.
The mother is to advise the father of [X]’s itinerary for the travel pursuant to order 4(a) no later than 21 days prior to [X]’s arrival.
The father is to be responsible for his own costs of travel in accordance with Order 4(b) and Order 4(c) above.
IT IS NOTED that publication of this judgment under the pseudonym Shields & Visser is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1405 of 2009
| MR SHIELDS |
Applicant
And
| MS VISSER |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the parents disagree about where their daughter, [X], who is almost eight years of age, should live. The mother wishes to be able to live in the Netherlands with her daughter. The father wishes her to live in Sydney.
Background
The mother, who is aged 43, was born in Amsterdam in the Netherlands and arrived in Australia in early 1991. She and the father, who is presently aged 56, met in Sydney and commenced living together in 1997, according to the father, or in the following year according to the mother. They married [in] 1999.
When the mother became pregnant she and the father decided to move to the Netherlands. They both agree that this was because she wanted to be closer to her family.
[X] was born [in] 2001 in Amsterdam.
The relationship between the parties deteriorated and they separated in November 2003.
The mother annexed to her affidavit final orders made by the Court in the Netherlands on 15 March 2005. They provided that [X] spend time with her father each alternate weekend from Saturday morning until Sunday evening, during the day on Wednesday and for half of school holidays and also on other special days. There was an order for shared guardianship.
The parties agree that during 2007 the mother told the father that she, [X] and her partner, Mr V, with whom she commenced a relationship in 2005, had decided to return to Australia in 2008. They also agree that in June 2008 the mother told the father that Mr V had been able to obtain a visa which enabled him to live in Australia. While Mr V described this as a temporary working permit in his affidavit, it became clear during the hearing that he was issued with a spouse visa to come to Australia.
The mother, [X] and Mr V arrived in Australia towards the end of August 2008. [X] was enrolled in [B] School. The father arrived in Australia on 20 October 2008 having stopped for a few days in Thailand. Largely it seems that [X] then spent time with him in accordance with the Court orders made in the Netherlands.
The parents agree that after the mother came to Australia she told the father that her own mother was suffering health problems, that her aunt had been diagnosed with cancer and that she, [X] and Mr V might not be staying in Australia much longer. There is disagreement about when the mother first indicated this to the father before he arrived in Australia. The father acknowledges that the possibility of the mother’s return was raised with him at least in November, the month after he arrived in Australia.
It appears that relations between the parents subsequently became strained. There was an issue about the father not allowing [X] to speak to her mother on the phone in Dutch. The father wanted to spend more time with [X]. He approached the mother with a parenting plan for the Christmas school holiday period. The mother agreed for [X] to spend part of the holiday period with her father although not for the length of time he wished.
On 13 February 2009 the father filed an Application in [B] Local Court seeking parenting orders including an order that [X] spend time with him each alternate weekend from 6.00pm Friday to 6.00pm on Sunday and an order that the mother be restrained from removing [X] from Australia and that the child’s name be placed on the airport watch list.
[X] then did not see her father, other than when he visited her at school, until interim orders were made in the Federal Magistrates Court on
19 June 2009 which provided for [X] to spend time with her father essentially from 6.00pm Friday to 6.00pm Sunday on alternate weekends.
The father resides with his own mother who is aged in her early 80’s in her home at [P] in Sydney. The father has worked as a [omitted] during much of the relationship. He has not been employed on any significant basis after he returned to Australia. He had some short term casual employment just prior to the hearing and had completed both [courses omitted].
The mother resides with [X] and Mr V in the eastern suburbs. She has at times worked part time since her arrival in Australia although she was unemployed at the time of the hearing.
Each of the parents has residence status enabling them to live in either Australia or the Netherlands. The family consultant noted that [X] had dual citizenship in Australia and Holland. The mother and Mr V planned to marry in Fiji in the middle of 2009 but have postponed the wedding.
The proposals
The father in his case outline sought orders that the parents have equal shared parental responsibility for [X], that she live with her mother and spend time with him during school term on each alternate weekend from 6.00pm Friday to 6.00pm on Sunday, for half school holidays and on special days, and that each of the parents be restrained from removing [X] from Australia and that her name remain on the airport watch list.
The father’s evidence is that was able to retain his accommodation in the Netherlands with the approval of the local council up to 13 October 2009. He says that a friend of his had been residing in his flat, but that he needed to return by 13 October 2009 and take up occupancy for his lease to continue. His evidence is that returning to the Netherlands is not an option for him. The father does not seek any specific orders in the event that [X] is able to live in the Netherlands with her mother and he remains in Australia.
The mother in her minute of orders[1] sought orders that [X] live with her in the Netherlands, that she have sole parental responsibility for [X], with [X] to spend time with her father in Australia for approximately five weeks which coincided with most of the mid year school holidays, and in the Netherlands for up to seven nights during all other school holiday periods. The mother confirmed in cross-examination that if the father travelled to the Netherlands she would agree to this period being extended to include the full two weeks of the school holidays.
[1] Exhibit 5.
The mother said that she wanted to return to the home she had in the Netherlands before she left. Her evidence is that she has continued to pay the rent on her flat and she hoped that paying rent in advance meant that she would not lose it. Her flat is located in the area of [X]’s school and the mother wished [X] to return to that school. The mother said that there is a risk that because she had not returned within a year that the lease could be lost. Her evidence in cross-examination was less certain about this risk than the evidence in her affidavit. The mother said that if she lost the flat she would try to find accommodation in nearby Amsterdam so that there would be a chance of [X] attending the same school. [X] has attended Dutch school in Sydney and has kept up with the Dutch curriculum. She has remained in touch with a friend from her school in the Netherlands.
The mother in her minute of orders did not seek any specific orders as to the time she proposed that [X] would spend with her father in the event that she was not able to take [X] to the Netherlands. During the hearing it was indicated to the Court that she did not dispute the proposal for time set out in the father’s case outline document.
The mother was not specifically asked whether she would herself stay in Australia if an order was made restraining her from removing [X]. However the tenor of her evidence leaves the Court in little doubt that she would remain and certainly her counsel referred to there being no suggestion that the mother would go to the Netherlands without [X]. Mr V indicated that he would remain with the mother.
There seem then to be two options. One is for [X] to remain with her mother in Australia and spend time with her father in accordance with the orders which he seeks, or on some other basis which appears to the court to be in [X]’s best interests. The other option is for [X] to be able to return to the Netherlands with her mother and spend time with her father in accordance with the orders which the mother seeks or in accordance with some other arrangement which the Court considers to be in her best interests.
The evidence
The father relies on his affidavit affirmed on 9 September 2009 and filed on 15 September 2009.
The mother relies on her affidavits sworn and filed on 3 March 2009, 17 June 2009 and 17 September 2009 and that of Mr V filed on
17 September 2009.
During the proceedings parts of an affidavit of the father sworn and filed on 13 February 2009 were also tendered in evidence [2]
[2] Paragraphs 35-39.
Also in evidence was a Family Report prepared by family consultant Kalli Tsiotsioras dated 28 September 2009
The issues
The issues in this matter include the following:
·[X]’s relationship with each of her parents and whether she would be able to maintain a meaningful relationship with her father if she returned to the Netherlands with her mother.
·[X]’s views and the weight to be given to them.
·The impact on [X] of the conflict between her parents.
·The mother’s willingness to facilitate a relationship between [X] and her father.
·The significance of considerations arising from what the family consultant referred to as the mother’s “emotional health.”
The relevant law
The Full Court in A & A (2000) 26 Fam LR 382 suggested three steps that should be followed by the Court in a relocation matter:
·Identify the relevant competing proposals
·Consider the proposal and evidence in the terms of the relevant factors set out in the Act which the Court must consider in determining the best interests.
·Explain why one particular proposal is to be preferred in terms of the best interests of a child.
In U & U (2002) 29 Fam LR 74 the High Court considered the approach to relocation matters and said the Court may not be able in every case to treat each of the steps as discrete and explained that the objective is always the child’s best interests.
The Full Court in Bolitho v Cohen [2005] FamCA 458 explained the approach as follows:
“We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s.68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
Following the amendments to the Family Law Act in 2006 the Full Court in Taylor & Barker (2007) 37 Fam LR 461 said that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of making the necessary findings in relation to the relevant section 60CC matters and that such proposal also needed to be considered in the context of section 65DAA. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
Section 60CC sets out the matters which the court must take into account in determining what is in a child’s best interests.
Primary Considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents
Each of the parents at hearing accepted that [X] would benefit from a meaningful relationship with the other. The evidence to be discussed indicates that while [X] has a good relationship with each of them, her primary attachment figure is her mother.
As explained by the Full Court in the matter of McCall & Clark [2009] FamCAFC 92 the benefit to a child of a meaningful relationship with a parent needs to be seen in a prospective context. The father’s proposal is that [X] remains in Australia and sees him during school term on alternate weekends after school, on special days and for half of school holidays. The mother’s proposals would mean that [X]’s time with her father would be reduced to one block period of approximately five weeks when [X] came to Australia and for shorter periods if the father came to the Netherlands. She also proposed electronic and telephone communication.
[X] of course, was almost eight at the time of the hearing and had an established relationship with her father. The family consultant’s evidence was that [X] would not have the same relationship with him if she returned to the Netherlands. Her evidence however, was not that [X] would be unable to have a meaningful relationship with him. She recommended that should [X] live with her mother in the Netherlands there should be a strong emphasis on ensuring regular telephone,
e-mail and/or web cam contact with her father and the parents should ensure that [X] visits her father on a regular basis. An important consideration in terms of the mother’s proposal is the likelihood of [X] spending the time with her father that would enable her to benefit from a meaningful relationship with him.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother both in her affidavit and in discussions with the family consultant raised concerns about the father’s past history of marijuana use. The father told the family consultant that he had a history of marijuana use which commenced at the age of 15. He told her he stopped when he was 52 years old. Certainly the documents relating to the Court proceedings in the Netherlands indicate that the mother sought reassurance that the father not use drugs when he was spending time with [X].
The father was asked about an assertion in the mother’s affidavit[3], that in early November 2008 after he had arrived in Australia, he had a conversation with the mother in which she set out concerns she had about [X]’s safety in particular “the dope and the dope friends” and asked him “to be responsible”. The father said that he did not recollect a conversation to that effect. As will be seen, the father’s recall of past events or conversations can be somewhat wanting. Given the acknowledged history, the Court accepts the mother’s evidence about this conversation. However, the father was not cross-examined about drug related issues at the hearing and no submissions were made about drug use or issues of past family violence.
[3] Sworn 16 September 2009 and filed 17 September 2009.
The family consultant, however, does set out in her report that [X] needs to be protected from the conflict between her parents. She qualified her evidence about the benefit which she saw in [X] having a meaningful relationship with her parents by saying that [X]’s interests would best be served provided that each of her parents “can provide her with physical and emotional safety”. Her evidence was that at this point of time neither of the parents had protected [X] from involvement in their conflict and that this was having adverse consequences for her welfare.
There can be no doubt that as the family consultant says, [X] has been involved by each of her parents in the conflict between them. The evidence of each of the parents is that [X] has been present during incidents of very significant conflict between them. [X] told the family consultant that her parents “always have fights” and that they hate each other and that she wanted them to be friends again. The family consultant reported [X] saying that “her father wants her to hate her mother” and that he told [X] that her mother had “kidnapped” her. She reported [X] saying that this was not true and that her father “lies.”
The family consultant’s evidence is that “there are indications that [X]’s emotional wellbeing is slowly being compromised by the conflict between her parents to which she has been exposed.”[4] During her oral evidence the family consultant elaborated on her concerns about [X]’s emotional well being. In her view [X] has a lot of responsibility on her shoulders because she wants to please her parents in a situation that is “lose-lose” for her. The family consultant described [X] as quite a sensitive child who was very aware of the conflict between her parents. She thought she would be finding it difficult to cope with knowing that her parents are arguing about her. The family consultant considered that [X] had been under a lot of pressure and wanted the conflict to stop. She thought it was significant that [X] drew a picture of herself holding a broken heart.
[4] Family report prepared by Kalli Tsiotsioras dated 28 September 2009 at paragraph 71
The family consultant did not make recommendations about the proposed relocation although she set out certain advantages and disadvantages of each of the parents’ proposals. One of the advantages she identified in [X] returning to the Netherlands was that [X]’s exposure to the parent’s conflict would be likely to abate. Certainly, the evidence in this matter, especially that of the family consultant which was not significantly challenged and which the Court accepts, leads the Court to find that [X] needs to be protected from psychological harm arising from the conflict between her parents. This is relevant both to this consideration and also to other relevant matters which arise for consideration in s.60CC(3)(m). This is a factor which lends some support to the mother’s proposal.
Additional considerations
Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
[X] was approaching eight years of age when she spoke with the family consultant who described her as a delightful and sociable young girl who seemed quite mature for her age. The family consultant thought it possible that [X] put on a “face” or “facade” about wanting to be happy in the presence of either parent.
The family consultant’s evidence was that [X] reported positive memories of her life in the Netherlands and that she expressed a strong view that she wanted to go back to the Netherlands because she missed her family but that her father would not let her go. She told the family consultant that this made her feel sad. She said that she would miss her father if she was to go but that she would visit him. She told the family consultant that she was scared about telling her father that she wants to go to the Netherlands because “he will never bring her back to her mum.” She said that she would feel “really, really, really, really sad” if she was unable to go back to the Netherlands. She said that she feels sad because her mother “really wants to win this court case and I do too.” She said that she worries about her family in the Netherlands because some of them are sick and she wanted to be able to visit them before they died.
The family consultant was asked in cross-examination whether it was her opinion that the views expressed by [X] were “genuine’. She said that overall [X] presented as a genuine child and noted that she seemed to have some valid reasons for wanting to go back to the Netherlands. Certainly as the family consultant noted in her oral evidence [X] has had experiences both in the Netherlands and Australia and so has a familiarity with both places. She said that [X] was influenced by both of her parents which made it difficult to know how much weight to put on her views. She said it was inevitable that [X] would be influenced by her awareness of her mother’s strong desire to return to the Netherlands.
The Court agrees with the family consultant that the pressure from each of her parents makes it difficult to weigh [X]’s views. In the circumstances of this matter however, the Court finds that some weight at least should be given to [X]’s expressed views particularly as she holds them so strongly, is familiar with the country in which the mother proposes she should live and has expressed what have been described as “valid” reasons for her views.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child
[X]’s mother has been her primary carer. The evidence of the family consultant is that she is also [X]’s primary attachment figure. The family consultant expressed the view that [X] has developed a primary attachment to her mother and a positive relationship with her father. [X] told the family consultant that she had two homes, one in [V], where she lives with her mother and Mr. V and the other in the Netherlands. The family consultant commented that “[X] considers home to be where her mother is.”[5] The family consultant observed [X] to interact with her mother and Mr V in a “relaxed, jovial and affectionate manner.”
[5] Family report prepared by Kalli Tsiotsioras dated 28 September 2009 at paragraph 74.
[X] was observed by the family consultant initially to be apprehensive about approaching her father in the waiting room and less interactive with him than with her mother. The family consultant was unable to comment on the significance of this behaviour other than to suggest that it related it to [X]’s awareness of the issues between her parents. Referring to her father, [X] said to the family consultant “I don’t really, really, really, really love him” but “I love him.” The family consultant when asked whether she considered that [X] and her father have a reasonably good bond responded that they “certainly seemed to get along quite well.”
In cross-examination the mother agreed that [X] had a good relationship with her father. She said “she loves him, she likes him.”
[X] appears to have positive relations with the extended family of both her mother and her father. She appears to have a positive relationship with Mr V.
[X] was conceived as a result of an IVF procedure. She is an only child. The mother gave evidence of prior relationships but apparently had no other children. The father gave no evidence of prior relationships. According to the mother the father told her early in the relationship that he had a daughter who lived in New Zealand. It may be the case then that [X] has a half sibling. The father was not asked about this.
[X]’s apparent stronger attachment to her mother is a relevant factor to be taken into account in considering the proposals of each of her parents.
Section 60CC(3)(c) requires the Court to consider the ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
It was submitted on behalf of the father that the mother would not support or facilitate the relationship between he and [X] and that there was a risk that if [X] went to the Netherlands her relationship with him would break down because the mother did not support it. It was submitted that the father had had difficulties seeing [X] following her parent’s separation. Both parties in their affidavits made complaints about the behaviour of the other in the past. However, generally, these matters were not treated as relevant issues in the conduct of the hearing. They were not the subject of cross-examination or of submissions. The Court is not in a position to make any findings about the period following separation and prior to the making of the orders by the Court in the Netherlands.
The mother’s evidence is that she has complied with the orders made in the Netherlands for the father to spend time with [X]. The father says that when he returned to Australia in October 2008 he continued to spend time with [X] in the same manner as had been occurring in the Netherlands[6].
[6] Paragraph 31, Affidavit of Mr S affirmed 9 September 2009 and filed 15 September 2009.
The father in his affidavit says that on about 8 August 2008 he had spent the weekend with [X] and when he returned her he had a conversation with the mother about her departure date because he noticed there was no furniture in the house. The mother told him that she was leaving in a few days. The father asked her to contact his mother when she arrived so that she could see [X]. The father says in his affidavit that he thought the mother was going to Australia for a holiday as she had done in the past although he also says in the same affidavit that in June 2008 the mother told him that Mr V had a permit to live in Australia and that she and he were planning to emigrate. The father says that he did not know the mother’s planned date of departure. He says in his affidavit that he went to the house “after being alerted by mutual friends” and found the house empty.[7]
[7] Paragraph 29, Affidavit of Mr S affirmed 9 September 2009 and filed 15 September 2009.
The father acknowledged in cross-examination that it was possible that the date the mother left the Netherlands was 22 August 2008. He agreed that between 10 August 2008 and 22 August 2008 he became aware that the mother was leaving on 22 August and that he spent time with [X] on that day and said goodbye to her. He agreed that he assumed that she was leaving that day. He also agreed that it was possible that leading up to the departure date of 22 August 2008 he had spent additional time with [X] than that provided for in the orders. The impression given by the father in his affidavit[8], that the mother had not kept him informed of what was happening, was inconsistent with his evidence in cross-examination. The Court found his attempt to explain this unsatisfactory.
[8] Paragraph 29, Affidavit of Mr S affirmed 9 September 2009 and filed 15 September 2009.
The father’s evidence at hearing was that although he had had conversations with the mother about her intentions he was not certain whether she proposed a temporary stay in Australia or intended to emigrate because he “didn’t have concrete evidence” either way. The mother says she told him that she was planning a temporary stay in Australia and wanted to see how things would work out. The father denied that she said this to him, although on his own evidence it was a possibility. The father’s evidence was that he started making plans to return to Australia to live in August 2008 on the day after the mother left. Both parents arranged to continue the leases on their respective premises for 12 months after their departure from the Netherlands.
The father agreed that as requested by him prior to her departure, the mother contacted the paternal grandmother shortly after she arrived in Australia and that she, the father’s sister, her children and [X] spent time together at a picnic. The father agreed that from the time of the mother’s departure until he left the Netherlands in mid October he remained in contact with [X] and that phone calls with [X] were facilitated by the mother. The mother says that she gave the father her new Australian mobile phone number and told the father that she had enrolled [X] in [B] School. The mother says that in one phone call she asked the father when he would be arriving and when he said
20 October 2009 she asked why he had waited so long. She said that the father responded that he had to wait for the council to give him permission to sub-let his house for a year just in case he wanted to come back. There is no reason not to accept the mother’s evidence about these things.
The father arrived in Australia on 20 October 2008 and telephoned the mother. It was then arranged for the father to see [X] after school the next day and the father’s time with [X] continued in accordance with the orders made in the Netherlands.
However disagreement arose between the parents in particular about [X]’s use of Dutch when she was with her father. While the father lived and worked in the Netherlands for a period of just over seven years, he says in his affidavit that his Dutch “is not that great” and that [X] prefers to speak to him in English. The mother says that after [X] spent a weekend with her father in November 2008 she told her mother that her father would not allow her to speak in Dutch because he wanted to know what she was saying to her mother when she spoke with her on the phone. The mother says she was upset and told [X] that that she should be able to speak in her own language to her family wherever she was. She told [X] that she would speak to her father about this. The mother in her affidavit[9] says that she spoke to the father on
23 November and told him that she was angry and upset about his restriction on [X]’s use of Dutch, especially, she said as she allowed [X] to speak to him in English. The mother says that the father responded that “it is my house and my rules in my house.” The mother says that the father then walked away and that she came after him and yelled at him “to think of [X]”. The mother acknowledged that [X] heard this. The father when asked about these events said that he expected his daughter to abide by the rules of his home while he is there and “not to receive instructions on how to react or act while she’s with me.”
[9] Affidavit of [Ms Visser] sworn on 16 September 2009 and filed 17 September 2009.
The father says that he wanted his time with [X] increased to include Friday night and that when he raised this with the mother in November 2008 she said that because of the illness in the family they might not stay in Australia for much longer and might return to the Netherlands. He says subsequent requests to the mother to spend the alternate Friday night with [X] were declined by her.
An issue then arose over the time [X] would spend with her father over Christmas and during the Christmas school holidays. The mother says the father asked her about her plans for Christmas in early December. She said that she would have liked to spend time with [X] on Boxing Day so that they could look at the start of the Sydney to Hobart yacht race and that she expected that the father would agree to spend time with [X] on Christmas Day. However the father, she said, indicated a preference for Boxing Day and the result was that [X] spent time with him on Boxing Day, rather than Christmas Day.
The father in his affidavit says that after returning [X] to her mother on 21 December 2008 he asked if [X] could spend Christmas day with him and that the mother said that she had not decided yet and that he should phone her during the week. He says that when he telephoned the mother she said that he could spend time with [X] on Boxing Day rather than Christmas Day. The father’s evidence about this seems somewhat confused in that there is evidence in a document of his that Boxing Day was his preferred day. This is consistent with what the mother set out in her affidavit. The father agreed that he gave the mother a document [10] in early December which set out two options for him spending time with [X] over Christmas and the holidays and which clearly indicate Boxing Day as his preferred day. The father was asked why he had criticised the mother for not allowing him to spend time with [X] on Christmas Day given his preferences set out in his document and responded that “both of these options were rejected.” The father was asked if he had spent time with [X] in accordance with the preferred times he set out in his documents. The conclusion to be drawn from the evidence he gave about this was that he had spent a large part of the time he had requested with [X] though certainly not all of it.
[10] Exhibit 3.
The evidence up to this point of time does not support an assertion that the mother was not supportive of [X]’s relationship with her father, although there was obvious mistrust between the parents as evidenced in particular around the issue of [X] speaking to her mother on the phone in Dutch.
The father said in cross-examination that he decided to institute proceedings in February 2009 because the holiday plan which he presented to the mother in December had been rejected as well as a parenting plan which he presented to her in January 2009. The father in his application to the Local Court at [B] on 13 February. 2009 sought essentially the parenting orders which he currently seeks. He also sought orders on an urgent basis that [X]’s name be placed on the airport watch list. The father in his affidavit in support of his application[11] alleged that the mother had threatened him on many occasions in the past that she would take [X] back to the Netherlands if he upset her or went against her demands. No specific threats were particularised in the affidavit and the father was cross-examined about this. He said that most of the threats were made in the heat of the moment and so he could not recall the details. His evidence was that the most recent threat he could recall was made in the context of a long conversation he had with the mother before Christmas 2008 “when she said many things to him.” This is consistent with the mother’s evidence of a conversation about [X]’s safety referred to previously. Nevertheless it was not until 13 February 2009 that the father sought an urgent watch list order. The father agreed that the mother had had no notice of this application. An interim order was made on 13 February 2009 placing [X]’s name on the watch list.[12]
[11] Exhibit 4.
[12] Annexed to the father’s affidavit affirmed 9 September 2009 and filed 15 September 2009.
On the weekend of 14 and 15 February 2009 the father spent time with [X]. He says that on 14 February 2009 while he was taking [X] to the cinema he drove past the [B] Local Court and said to [X] that he spent all day at the Court the previous day and that “mum and dad are going to have an argument about how much time I can spend with you.” He says that on 15 February as he was returning [X] he handed the mother a copy of his Application and affidavit in an envelope. He was asked whether he would say that his relationship with the mother changed after that. He responded “it terminated.”
The mother’s evidence is that [X] asked her what was in the papers and that [X] told her about the father’s comment about him spending time at the Court. The mother says that [X] became very upset that she might not be able to return to the Netherlands and was often crying and sobbing and saying that she wanted to go home. The mother in her affidavit[13] expressed her upset at the inference in the father’s affidavit that he did not know when she had left the Netherlands and said that she and [X] were being held “captive” in Australia for no reason.
[13] Affidavit of Ms Visser sworn 15 June and filed 17 June 2009
In cross-examination the mother agreed that in a phone conversation with the father in the week following the service of the documents she said to the father that she was “pissed off about all the court business”. She denied that she said that the father would not see [X] again unless he stopped taking her to Court. She said that what she told the father was that she, Mr V and [X] were all “very, very upset by what he had done” and that [X] did not want to see him because she was so upset and did not want to speak to him on the phone.
The mother’s evidence was that [X] asked her what was in the papers because her father had already told her about them. The mother said she did not give [X] details but told her that her father did not want her to go home anymore. When asked why she thought it was appropriate to tell [X] what the father was seeking, the mother said it was because it made “such a huge impact on our family. Such a huge impact that you cannot let a child into the dark when something major happens in her own home.” The mother said that [X] started crying straight away and that “we were all crying.” She said that [X] was so sad about not being able to go home.
The father’s time with [X] ceased after the Court documents were served on the mother and did not resume until the subsequent Court orders were made some months later in June. The father occasionally saw [X] at her school. In his affidavit the father describes a significant incident at the school on an open day on 28 May 2009 when the mother arrived and saw the father and paternal grandmother in [X]’s classroom. The father says that the mother called out in front of the children and other parents and took [X] out of the classroom and then re-entered the room with [X] saying in front of the people in the room “you have no right to be here. Get out! What do you think you’re doing?” The mother described [X] as looking nervous. The mother did not accept all the details of the father’s description of the event. She agreed that she said to the father that she would like him to leave. The mother acknowledged in cross-examination that she should have acted in a different way and should have walked away. Given the mother’s evidence about her feelings and her acknowledgment that she chased the father “yelling at him” following the disagreement about the use of the Dutch language, the Court accepts that it is likely she behaved much as the father described.
The father said that telephone communication with [X] ceased on
26 June 2009 and that he had only spoken to her once on the telephone between then and when he affirmed his affidavit on 9 September 2009. He said that the mother’s landline had been disconnected on about
26 June 2009 and that from then until the beginning of August he phoned her mobile telephone each Tuesday and Thursday to speak to [X] but found the phone always switched off.
The mother had told the family consultant that the father did not call to speak to [X]. She was cross-examined about the father’s complaints about the difficulty he said he was having speaking to [X] on the phone. The mother acknowledged that there was an agreement between she and the father that he would phone [X] at 6.30pm on Tuesdays and Thursdays. She acknowledged a letter from the father’s solicitor to her solicitor dated 1 July 2009 advising that the father had been unable to contact [X] by phone since 30 June 2009. The mother said that she had disconnected her landline because of the cost and had informed the father that he would only be able to make contact on her mobile phone. She said that she did not think that there had been a problem getting through on the mobile but that it might not be heard because she might be at the beach or out to dinner. It was put to the mother that when the father and [X] started communicating less over the phone that she could have taken some steps to encourage [X]. The mother said she had suggested to [X] a few times that she phone her father. In hindsight she said she should have “forced her a bit more to ring her father.”
There were no orders in relation to the telephone communication between [X] and her father but there was an agreement made at a mediation which the mother acknowledged. Especially in circumstances where the father’s solicitor had made a complaint about telephone communication difficulties, the responses of the mother do not indicate that she accepted a responsibility to facilitate this communication between [X] and her father. The mother says that in hindsight she recognises that she should have been more proactive. She says that in the event that she is able to return with [X] to the Netherlands she would have to be a lot more forceful about this because [X] would see her father less.
In submissions, the father’s counsel identified as a risk what he described as the propensity the mother had shown when the parties disagree to stop the father having time with [X], or to fail to adequately to manage the child’s concerns so as to encourage her to spend time with her father. He suggested that the Court should find that the mother simply did not want the father to spend time with [X] because she was so angry with the father for seeking to spend more time with [X] and wanting [X] to stay in Australia. He submitted that in relation to the issue of telephone communication the mother had demonstrated conduct which indicated that she was not supportive of communication or at least would “sit on her hands” and not be proactive if [X] was in the Netherlands.
The willingness of the mother to facilitate [X]’s relationship with her father is one of the significant issues in this matter. The evidence indicates that up to the time she became aware of the father’s application in mid February the mother had complied with the court orders. She had kept the father informed of her plans, arranged for him to spend some extra time with [X] before she came to Australia and ensured that [X] kept in touch with him until he arrived.
The dispute which then arose was a very significant one. The father had already told [X] there was going to be an argument between he and her mother. The Court accepts that the possibility of not being able to return to the Netherlands with [X] caused the mother very significant distress. The mother’s evidence is that the arrangements about living in Australia were trial arrangements. It was for this reason she said that she kept her flat, cars and bank accounts in the Netherlands. She said that she was still paying the rent on the flat and that the monthly rent was indicated in her bank statements which were in evidence, though not translated. The father says that the mother indicated to him the possibility of a return especially because of the illness of her mother and aunt over two months before he filed his urgent application. The mother’s evidence is that she indicated this to the father before he arrived. There seems little doubt that there was emotional turmoil in the mother’s home when she became aware of the father’s actions. There can be little doubt that in this context the mother was not supportive of [X] spending time with her father. The school documents in evidence show that she complained to the school when the father attempted to see [X] there.
There is a risk that the mother would not proactively support [X]’s relationship with her father if she and [X] returned to the Netherlands and this is something which does not favour the mother’s proposal. At the same time the mother acknowledged [X]’s feelings for her father. She acknowledged to the family consultant that while [X] was angry with her father she nevertheless loved him. This and her past compliance with Court orders, may well mean that should the restriction on the mother’s ability to return to the Netherlands be removed, her distress and frustration will be alleviated and she will be compliant with Court orders as she has been previously. This is consistent with the opinion expressed by the family consultant in her report that the mother appeared to have an interest in maintaining [X]’s relationship with her father.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)
[X]’s bond with her mother is stronger than that with her father. Nevertheless [X] loves her father and would miss him if she returned with her mother to the Netherlands.
Certainly the father refers to activities he enjoys with [X] including swimming and family outings. At the same time he does not seek orders which would amount to spending substantial and significant time with [X], as defined in the Family Law Act 1975 (Cth), and which would allow him to have a close involvement in [X]’s day to day activities should she remain in Australia. He does not, for example, seek to take her to school, or collect her from school or to participate in any particular sporting or cultural activities in which [X] is involved or set out any plan for such activities.
However, as the family consultant said, [X] is in a “lose/lose” situation whatever orders are made by the Court. The Court accepts the evidence of the family consultant that “it is likely that [X] would experience a degree of loss or sadness regardless of whether she was to remain in Australia or go back to the Netherlands”.
Much of course depends on [X]’s future contact with her father. He has said he has no intention of returning to the Netherlands although he kept the lease on his flat for 12 months after he left. He said that he did not have the financial capacity to afford a round trip and accommodation expenses for one trip to Holland a year in the event that [X] was able to return there. The father gave no evidence of the extent to which he shares costs with his mother arising from circumstances where he lives in her home. He said that following his 10 week [omitted] course which he was due to commence towards the end of 2009, he would be placed in paid employment under a mentor for nine months. He was unable to give any evidence of what he would earn during this time although he said he anticipated that he would be able to save some money. The Court is not convinced by the father’s assertion that he would not travel to the Netherlands if [X] returned there. It is not an unfamiliar place to him. He lived there for around seven years. He refers to friends he has there.
[X], of course has not spent such a long period as five weeks with her father. This is the period the mother proposes which would coincide with the summer school holidays in the Netherlands. The mother does not propose that [X] travel unaccompanied for some time, the likelihood then, is that the mother would be available for [X] should the need arise.
On balance, however, because there must be some degree of uncertainty about the time [X] would spend with her father, because of the costs involved, this consideration does not favour the mother’s proposal.
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is a major consideration. The distance between Australia and the Netherlands is great. The cost of travel is substantial. The mother tendered a document about an unaccompanied minor service associated with a particular airline but gave evidence that she would not allow [X] to travel unaccompanied until she was at least ten years of age. This obviously would add to the cost of travel for the next couple of years.
The evidence of each of the parents is that they do not have significant financial resources. The mother has worked casually on a part time basis for some of the period following her arrival but more recently has been unemployed.
The family consultant recommended that if the mother and [X] were able to return to the Netherlands the mother should ensure that [X] visits her father in Australia on a regular basis. The mother proposes that the father pay one half [X]’s costs for her return air travel to Australia once a year and that each of the parties should otherwise be responsible for costs associated with their own travel. This would mean of course that the father would be responsible for his own costs should he travel to the Netherlands to see [X] during the shorter mid term holidays as well as the longer summer holidays it appears that there are four short mid term holidays during the year.[14] The mother’s evidence is that she has travelled to Australia with [X] on three occasions in the last four years. Presumably she was able to meet the expense of that. Her evidence is that she will be able to obtain work in the Netherlands. It is likely then, that she would be able to make a greater contribution towards [X]’s travel costs than she proposes.
[14] Exhibit 1 Document titled Dutch school holidays in the Netherlands.
Overall however, the practical difficulty and expense of travel is a concern which does not favour the mother’s proposal.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.
The father told the family consultant that he did not have any concerns about the mother’s parenting capacity. He said that she was a “fine mother” and that [X] appears to be happy, healthy and bright. There is no evidence before the Court that would cause the Court to question the mother’s capacity to care for [X]’s needs apart, of course, from her apparent difficulty in protecting [X] from her own distress arising from the present dispute with the father. The mother’s counsel referred to the family consultant’s evidence about the mother’s present emotional state and the impact on [X] if the mother continued to feel the way she does at present. This was not clearly put as a submission about an impairment of the mother’s capacity to parent [X] as such. It is nevertheless, a very significant issue, and will be considered further as a relevant consideration under section 60CC(3)(m).
The mother told the family consultant that she was concerned about the father’s drug use and its impact on his parenting capacity. Her concern, however, she said was relieved by the fact that he was living with his mother. As discussed these issues of capacity were not matters for cross-examination during the hearing or for submissions. In any case, the father’s own proposals for his time with [X] do not involve significant day to day responsibility for her.
On the evidence before the Court, the Court makes no adverse findings about the capacity of either of the parents other than of course in relation to each of them failing to protect [X] from emotional harm arising from the conflict.
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Nether of the parents has shielded [X] from the conflict between them. The family consultant observed that the parents have not managed to effectively communicate with one another and that while both parents acknowledge that [X] has suffered they seem unable to identify ways to improve the situation for [X].
The Court finds that to this extent neither parent has appropriately exercised the responsibilities of parenthood.
Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family and Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if the order is a final order; or the making of the order was contested by a person;
This was not a relevant consideration in the proceedings.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This was not a relevant consideration in the proceedings.
Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.
An aspect of the father’s case and a matter upon which some considerable time was spent in cross-examination related to educational standards in the Netherlands and an apparent concern by the father that [X] will not be taught English at school. The Court does not regard this as a significant issue given that the mother proposes that [X] is returned to a developed country such as the Netherlands.
The mother’s counsel submitted that the mother had given evidence about her own considerable stress following the father’s actions in seeking to prevent her returning to the Netherlands. He pointed to the evidence of the family consultant about the mother’s emotional state and its impact on [X]. His submission was that in the event that the mother was not able to take [X] back to the Netherlands, this situation would continue and would not be in [X]’s best interests
Certainly one of the advantages the family consultant identified in the mother’s proposal to return with [X] to the Netherlands was that the mother’s “emotional health” was likely to improve. The family consultant’s evidence in her report was that the mother told her that she had difficulty coping emotionally, she also told the family consultant that she had been unable to continue working because of the stress she felt arising from the court proceedings.
In her oral evidence the family consultant agreed with the proposition put to her by the mother’s counsel that the mother’s sadness and anxiety would be likely to continue if [X] was required to remain in Australia. The family consultant referred to what the mother had reported about her difficulties in working and sleeping and said that in one respect the mother’s ability to function in everyday life has been “compromised at this point of time” and that she was finding it difficult to cope.
The family consultant was asked if the mother continued to feel the way she did, whether in her opinion that would have a detrimental impact on [X]. The family consultant responded that a parent’s emotions would have an impact on a child and that inevitably it would make a difference to how [X] feels.
It was submitted by the father’s counsel that the decision of the Full Court in McCall and Clark [2009] FamCAFC 92 was authority for the proposition that some type of expert evidence was required before the Court could find that what was effectively a requirement for a parent to live in a particular location compromised the parent’s quality of life to the extent that it could impact on the child. McCall and Clark was a matter in which there was no evidence before the Court other than that of each of the parents. The Full Court noted that there had not been the benefit of the assistance of any expert evidence from a family consultant or from a similar expert and that there was a lack of evidence about attachment and relationships.[15] The Full Court in McCall & Clark referred to the earlier decision in Taylor & Barker (2007) 37 Fam LR 461 in terms of the approach to be taken in relocation matters although did not refer specifically to the way the issue of expert evidence relating to the “happiness of a parent” was considered in that earlier decision.
[15] Paragraph 11 of the judgment.
This is a matter where there was expert evidence from a family consultant and where that family consultant in her report had identified as an advantage of the mother’s proposal that “her emotional health is likely to improve.” The family consultant in cross-examination explained why she identified an emotional health issue in relation to the mother. The evidence of the family consultant indicates that she accepted the mother’s description of her symptoms as indicating an “emotional health” issue. As discussed, it appeared not to be asserted by the mother’s counsel that the mother’s emotional state was such that it would compromise her parenting ability. The father’s counsel did not question the expertise of the family consultant to give this evidence although he did submit that there was no expert evidence put forward by the mother setting out a particularisation of her symptoms while the family consultant’s expertise was not explicitly called into question, it is worthwhile noting that the curriculum vitae attached to her report indicates that she has a Master of Psychology (forensic) and has worked as a psychologist/child adolescent mental health professional for a number of years.
The Court gives weight to this opinion of the family consultant. It is particularly significant in this matter because of the other evidence of the family consultant, which was unchallenged, that the conflict between the parents is compromising [X]’s emotional wellbeing.
These concerns both about the impact on [X] of the mother’s emotional state and the impact on her of her parent’s conflict arise in circumstances where the Court has found that [X]’s primary attachment is to her mother. These considerations favour the mother’s proposal in that a return to the Netherlands will reduce the stress on the mother and remove [X] from the present conflict between her parents. If [X] remains in Australia with her mother the Court can only find that the present level of conflict between the parties will continue as will the adverse impact on [X]’s emotional wellbeing.
The father’s counsel raised issues about the credit of the mother and
Mr V in relation to the nature of the visa Mr V sought when he wished to come to Australia. The Court however, does not find overall there was a credit issue with the mother’s evidence. Although it may be that there was a lack of frankness in representations to the Department of Immigration about Mr V’s proposed stay in Australia. The Court does find that in some matters there was an issue of reliability in terms of the father’s evidence. This is reflected in the evidence he gave about his knowledge of the date on which the mother was intending to come to Australia and other matters around this time, and also in his evidence about his conversation with [X] after he filed documents in the Local Court. The father when asked in cross-examination said he did not recall telling [X] that there was going to be an argument between he and the mother. Such evidence was set out in his affidavit, it was only after the father was shown the affidavit that he acknowledged that it was correct that he had said this to [X]. It is likely of course that each of the parties has exaggerated some aspects of their evidence to suit their case.
Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.
The issues relevant to this consideration have been considered, particularly as part of s.60CC(3)(c).
Parental responsibility
Section 61DA(1) states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.
The mother in the context of [X] living with her in the Netherlands seeks an order for sole parental responsibility. The father seeks an order for equal shared parental responsibility. The mother has not indicated opposition to the orders the father seeks should [X] not be able to live with her in the Netherlands. These include an order for equal shared parental responsibility. The basis for the order the mother seeks presumably relates in some way to issues arising from the distance involved.
This is a matter where the conflict between the parties is very high at present. The father’s evidence was that his relationship with the mother “terminated” after she received the Court documents. Prior to that there is evidence that the parents were able to communicate. The Court has accepted the mother’s evidence that she kept the father informed of her intention to come to Australia, that the father was in regular contact with [X] before her departure from the Netherlands, after her arrival in Australia and following the father’s arrival in Australia. Certainly, evidence that communication between the parties was fraught and that trust between the parties was absent was a significant factor in the view of the Full Court in the matter of Treloar & Nepean [2009] FamCAFC 206 about the inappropriateness of an order for equal shared parental responsibility at least in the context of an interim hearing. The evidence indicates that communication and consultation and decision making about major long-term issues overall is likely to be more impacted by the conflict between the parents if the mother and [X] continue to reside in Australia. It may well be that in the event the mother is able to live in the Netherlands with [X], over time, the present high level of conflict between the parties will abate to some extent.
The mother gave evidence about her preference to change [X]’s surname to her own on the basis that “Shields” was not the father’s family name and that he had changed his name from the family name at some point in his life. The mother made no application to change [X]’s surname, however it is important that no unilateral decision be made about an important matter such as this. This is a matter where the Court is not satisfied that the evidence indicates it is not in [X]’s best interests that there be an order for equal shared parental responsibility. The Court considers that this is a matter where there should be an order for equal shared parental responsibility whether [X] lives with her mother in the Netherlands or in Australia.
Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(1):
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
In this matter neither party seeks an order for equal time. Given [X]’s close attachment to her mother and given that the father has not cared for [X] other than at weekends and during holidays, the Court would not find that it was in [X]’s best interests that there be an order that she spends equal time with each of her parents.
Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In this matter the father does not seek to spend time with [X] that would meet the description of significant and substantial time as set out above. The father does not set out any proposals of how he would care for [X] if he was to spend more time with her. The Court therefore has no evidence about how he could care for [X] if she was with him for longer periods of time. For these reasons and because it is not something the father indicates he wishes, the Court does not find that it is in [X]’s best interests that an order be made for her to spend significant and substantial time with the father. It certainly would not be reasonably practicable if [X] lived in the Netherlands with her mother.
The father seeks an order that [X] spend alternate weeks and half school holidays and special days with him. This of course would not be possible if [X] was to live with her mother in the Netherlands. The family consultant made no recommendation as to whether [X] should live in the Netherlands with her mother or remain in Australia. She did however, in her report set out what in her opinion were the advantages and disadvantages of the alternative options for [X].
In her opinion one of the advantages of [X] going back to the Netherlands was that her exposure to the parental conflict would be likely to abate. Further she considered that the mother’s emotional health was likely to improve and that the mother would be able to access the support of her family and friends. She also considered it relevant that [X] misses the Netherlands and her family and friends there, that [X] spent her formative years in the Netherlands and would return to her old school and friends. She pointed to the mother’s strong connection with Australia and [X]’s strong connection to Australia and family and friends. The Court takes this to mean that the family consultant considered that there would be an incentive to maintain these links. As referred to previously she also included as an advantage her opinion that the mother appeared to have an interest in maintaining [X]’s relationship with her father.[16]
[16] Paragraph 75, Family report prepared by Kalli Tsiotsioras dated 28 September 2009.
The disadvantages that the family consultant identified if [X] was to go to the Netherlands with her mother, was that [X] would not be able to have the same relationship with her father as she does while she lives in Australia, that [X] would miss Australia and her family and friends here and the financial difficulties the father would have in travelling to the Netherlands. She also added that the father was concerned that the mother would not encourage the communication between him and [X]. She saw the advantage of [X] continuing to live in Australia is that she would have extensive face to face contact with her father and paternal extended family and noted that she appeared to have settled into school and was doing well socially and academically. On the other hand, her opinion was that if both parents continued to reside in Australia, a likely disadvantage was the continued conflict between the parents and the impact of this on [X].
The advantages and disadvantages outlined by the family consultant are all accepted by the Court. The Court in this matter needs to balance the significant concerns about the continuing conflict between the parents on [X]’s emotional welfare, the impact on her of the mother’s emotional state and her own views, with the fact that if she returns to the Netherlands with her mother she will see a lot less of her father and that her continuing relationship with him will to a large extent depend on the mother facilitating that relationship.
The Court has found that [X]’s primary attachment is to her mother. The family consultant said that [X] considered home to be where her mother was. [X] has expressed a strong wish to return to the Netherlands, no doubt aware that this is what her mother strongly wants, but as the family consultant observes, in circumstances where [X] can give valid reasons for her views and is familiar with life in the Netherlands. The family consultant noted that [X] spent her formative years there.
Certainly, the mother has not been willing to facilitate [X]’s relationship with the father since he commenced proceedings in February 2009. Prior to that the evidence is that overall she had facilitated the father’s relationship with [X] and that this continued after the father’s arrival in Australia. The family consultant cited as a disadvantage of [X] going to the Netherlands with her mother the father’s concern that the mother would not encourage communication between he and [X]. The difficulties in that communication of course, has arisen in the context of months of extreme conflict which followed the institution of the present proceedings. The family consultant considered that the mother appeared to have an interest in maintaining [X]’s relationship with her father and this is consistent with her actions up to February 2009. The Court is of the view that the interrelated considerations of the adverse impact of the conflict on [X] which will inevitably continue if she is to remain in Australia, [X]’s primary attachment to her mother, [X]’s views and the emotional difficulties of the mother overall outweigh the risk, which objectively appears to be not high for the reasons discussed, that the mother will not act to facilitate [X]’s relationship with her father.
The father has said that he will not return to the Netherlands to live. He says he is not physically able to any longer work as a rigger which was the employment he mainly had there. He has pursued training for other occupations in Australia. The Court accepts that he is unlikely to return to live in the Netherlands, however, as noted the Court is not convinced that he would not return to visit [X] in the Netherlands. The likelihood is that he would visit [X] in the Netherlands and that his relationship with her will be maintained.
The Court for the reasons set out finds that it is in [X]’s best interests to be able to return to the Netherlands to live there with her mother. [X] will see less of her father and orders need to be made which will facilitate her continuing relationship with him. The mother’s evidence is that she will return to her previous employment as a [omitted]. Previously she has been able to afford to come to Australia on a number of occasions since 2005. In the circumstances, it is reasonable to require her to be responsible for the cost of the airfares of [X] to spend the mid-year time with her father. In a couple of years [X] will be able to travel as an unaccompanied minor.
The father should meet the costs of his travel to the Netherlands and he should be able to spend the whole of at least two of the mid term school holiday periods with [X], if he travels to the Netherlands, provided that he gives the mother 28 days notice of his intention. The father if he stays for a period which includes school term, in the event that such a period is up to six weeks, should be able to spend each weekend with [X] together with up to three occasions each week from after school to before school the next morning.
This like many other relocation matters raises difficult issues, particularly for [X]. In this matter the mother has strong ties with Australia and an apparent inclination to maintain that connection. It would be unfortunate if these proceedings mitigated against that.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Walker FM
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