VERVERS & GRANT
[2015] FamCA 227
•31 March 2015
FAMILY COURT OF AUSTRALIA
| VERVERS & GRANT | [2015] FamCA 227 |
| FAMILY LAW – CHILDREN – Final orders – Approach to parenting matter including proposed international relocation – Where the mother wishes to relocate the child to the USA to live with the mother and her husband who is a USA citizen – Where the father has had limited involvement in the parenting of the child – Where the father has provided minimal financial support for the child – Consideration of the views of the child – Where the Court is satisfied that a meaningful relationship between the father and the child can be maintained despite the child’s relocation – Where the Court is satisfied that the relocation of the child to the USA is in the best interests of the child – Orders made allowing the mother to relocate the child to the USA – Orders made for the child to spend time with the father in Australia during the USA summer school holidays each year, and for the father to spend time with the child in the USA in February of each year and alternating Christmas time – Orders for regular electronic communication – Where the mother is to have sole parental responsibility for the child, with the father’s views to be considered in making decisions. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Adamson v Adamson (2014) 51 Fam LR 626 AMS v AIF (1999) 199 CLR 160 Cartlege & Cartlege (1977) FLC 90-254 Collu & Rinaldo [2010] FamCAFC 53 Joannou & Joannou (1985) FLC 91-642 Mitchell & Mitchell (1984) FLC 91-531 MRR v GR (2010) 240 CLR 461 R and R (2000) FLC 93-000 R v R (Children’s wishes) (2002) FLC 93-108 Radford & Alpe (No. 2) (1985) FLC 91-622 Re: F: Litigants in Person Guidelines (2001) FLC 93-072 Sigley & Evor (2011) 44 Fam LR 439 Taylor & Barker (2007) 37 Fam LR 461 U v U (2002) 211 CLR 238 Wotherspoon & Cooper (1981) FLC 91-029 |
| APPLICANT: | Ms Ververs |
| RESPONDENT: | Mr Grant |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Leanne Walsh |
| FILE NUMBER: | BRC | 3863 | of | 2013 |
| DATE DELIVERED: | 31 March 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 12 and 13 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gage of Counsel |
| SOLICITOR FOR THE APPLICANT: | Bayside Community Legal Service |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Linklater-Steele of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | DA Family Lawyers |
Orders
it is ordered that:
All previous parenting orders are hereby discharged.
The mother shall have sole parental responsibility in respect of all major long-term issues in respect of the child, B born … 2003, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a) advise the father in writing of any prospective decision in relation to the child’s long-term care, welfare and development;
(b) request the father to provide written input into the decision to be made;
(c) consider any of the father’s input before making any decision; and
(d) thereafter, inform the father in writing of any decision made.
Each parent shall have parental responsibility for day to day decisions about the care, welfare and development of the child whenever the child is in their care, pursuant to these Orders.
The child shall live with the mother and the mother be permitted to relocate with the child to the United States of America upon completion by the child of Term 2 at C School at the end of June 2015.
Pending the mother’s and the child’s relocation to the United States of America the child shall spend time with the father at all times as agreed between the parties and failing agreement as follows:
(a) each alternate weekend from after school on Friday afternoon until before school on Monday morning provided that if the Monday is a public holiday or pupil free day then the period is extended until before school on the Tuesday;
(b)for one half of the forthcoming Easter holiday period for C School commencing on 2 April 2015.
On and from the relocation of the mother and the child to the United States of America the father shall spend time with the child as agreed between the parties and failing agreement in the following manner:
(a) commencing in 2016 the father by the 1 January each year shall advise the mother in writing of his intended holidays;
(b) commencing in 2016 the father shall spend time with the child for such portion of the United States of America school holiday summer vacation as he may request so long as such time coincides with his actual holiday time;
(c) commencing from the time of the child’s relocation the father be at liberty to spend time with the child in the United States of America by giving the mother two (2) months notice of his intention to travel and spend time with the child provided that such time coincides with the child’s school holidays and the father’s holiday time;
(d) each alternate year commencing 2015, the father shall spend time with the child in Australia during the Christmas/winter school holiday break provided that such time coincides with the child’s school holidays;
(e) for the purposes of effecting the father spending time with the child in paragraphs 6(b) and (d) the mother shall cause the child to be transported to Australia;
(f) in relation to the costs of travel, in relation to paragraphs 6(b) and (d) the mother shall bear the costs of travel;
(g) in relation to the costs of travel in relation to paragraphs 6(c) the father shall bear the costs;
(h) the father communicate with the child by Skype or other electronic means each Sunday 11.00 am Queensland Eastern Standard Time (7.00 pm Pacific Standard Time); and
(i) the father be at liberty to telephone the child at any reasonable time and should the child express a wish to communicate with the father, the mother shall facilitate such communication at all such reasonable times.
In the event that the father is not spending face to face time with the child on any of the father’s birthday, the child’s birthday, Father’s day, Christmas day and Easter Sunday the child shall communicate with the father via Skype between 8.00 am and 2.00 pm Queensland Eastern Standard time.
The mother communicate with the child by telephone on one occasion per week when the child is in the father’s care and the father provide details of his location to the mother to enable this to occur.
The parties shall each respectively provide to the other no less than one month’s written notice of an intention to change their residential address and/or their landline telephone number.
Both parents are at liberty to attend the child’s extra-curricular activities and parent teacher nights or any school based event.
Unless specified otherwise in these Orders, or unless agreed otherwise between the parties, the father shall collect the child from the Brisbane airport at the commencement of those periods when the child shall be spending time with him and the mother or her nominee shall collect the child from the Brisbane airport at the conclusion of those periods when the child shall be spending time with the father.
Both parents are hereby injuncted against denigrating the other or making critical or derogatory remarks about the other, or any partner of the other, in the presence of the child.
The child shall be known by the name “B” and all parties shall cause the full hyphenated name to be used in any circumstances where the child’s surname is to be used.
The parties shall each respectively advise the other of any illness or injury suffered by the child whilst in that party’s care.
The parties shall each respectively advise the other of any person or institution providing any medical care, counselling, or the like to the child whilst in that party’s care.
The parties shall each respectively authorise and direct any person providing the kind of care referred to in the order above to the child, to discuss such treatment and to provide any information or documentation that the other party may seek in relation to such treatment. The parties may respectively produce a copy of these Orders to any person providing such care as evidence of the other’s authority and direction in that regard.
Except in a case of an emergency, the parents shall respectively advise the other no less than fourteen (14) days prior to any medical, counselling or other therapeutic appointment involving the child, and both parents are at liberty to attend such appointment.
The parties shall each respectively authorise and direct any school or other educational/developmental institution attended by the child from time to time, to discuss the child’s education and to provide any information or documentation that the other party may seek in relation to such treatment. The parties may respectively provide a copy of these Orders to any such school or institution as evidence of the other’s authority and direction in that regard.
The mother retain custody of the child’s passport (other than those periods when the child is engaged in travel or visits to Australia pursuant to these Orders) and the mother be at liberty to re-apply for an extension of the passport at her discretion.
Each party have liberty to apply in the event of any issue arising as to the operation of these Orders pending the relocation of the mother and the child to the USA, or as to the timing and practical steps to be taken in that respect.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ververs & Grant 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 BRISBANE |
FILE NUMBER: BRC 3863 of 2013
| Ms Ververs |
Applicant
And
| Mr Grant |
Respondent
REASONS FOR JUDGMENT
Ms Ververs, the mother of B born in 2003 (now almost 12 years of age) proposes that parenting orders[1] be made for the mother to have sole parental responsibility for the child and which would enable the mother to relocate the child to the United States of America (“USA”) to live there with the mother and her husband Mr D, a citizen of the USA.
[1]Within the meaning of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
B’s father, Mr Grant, opposes the orders sought by the mother. He proposes, in summary, that parenting orders be made so that if the mother chooses to live in the USA, the child would live with him. Alternatively, if the mother is not permitted to relocate the child to the USA and the mother remains living in Australia, the father proposes that parenting orders be made to achieve the child spending equal time with both parents. On either alternative the father seeks an order for equal shared parental responsibility.
Whilst the detail of each parent’s proposed orders will be further outlined, at the outset of the trial, the Court called upon each party to provide the detail of orders sought in the alternative. That is, the mother was called upon to provide the Court with the detail of orders she would seek to be made in the event that the mother did not succeed in her proposal for the child to be relocated to the USA; and likewise the father was called upon to provide the detail of orders he would seek in the event that the orders allowed for the child’s relocation to the USA.
The mother’s position, in summary, is that if she is not permitted to relocate the child to live with her and her husband in the USA the mother will not live in the USA without the child, but will remain in Australia. On that basis the mother opposes the father’s proposed orders for equal time and for equal shared parental responsibility and the mother otherwise contends for parenting orders providing for the child’s time with the father to be made in similar terms to the final orders that were made in the then Federal Magistrates Court on 8 September 2006. Those orders, in summary, provided for the child to live with the mother and spend time with the father on a graduated timetable resulting in the child spending time with the father on alternate weekends from after school on Friday to before school on Monday; alternate Tuesday nights; and for half school holiday periods.
For his part, in the event that the child was living in the USA with the mother, the father did not seek any significant departure from the orders sought by the mother and the Independent Children’s Lawyer (“ICL”) on that scenario save for the amount of holiday time and other time the child might spend with him.
In this context it would be wrong to elevate each party’s “default” position to the status of a proposal advanced. That is, the mother does not advance or propose parenting orders being made which preclude the child’s relocation to the USA as her primary position; and the father does not advance or propose parenting orders being made on the basis that such relocation is permitted as his primary position. Rather, each parent provided their “default” position and proposed orders if the primary proposal they advanced, respectively, was not reflected in the Court’s determination concerning the child’s relocation.
Leanne Walsh, the ICL appointed to independently represent the child’s interests in the proceedings pursuant to s 68L of the Act seeks parenting orders which support the mother’s proposal for the child’s relocation to the USA to live there with the mother. In the event that such relocation is not permitted the ICL supports orders being made in general conformity with the final orders that were made in the then Federal Magistrates Court on 8 September 2006. On either scenario the ICL contends that it would be in the child’s best interests for an order to be made for the mother to have sole parental responsibility in respect of decisions concerning long-term issues.
The academic year in the USA commences in August. The mother gave evidence to the effect that if she is permitted to relocate, her plan is for the child to complete Term 2 at C School (by the end of June 2015) which would then enable sufficient time for the child to become settled in her circumstances for the commencement of the USA academic year in August 2015.
I record that in the trial proceedings before me the mother was assisted by a Community Legal Centre and by the appearance, on a pro bono basis, of a solicitor and barrister to assist her on the trial. The father was self-represented and at the outset of the trial took some issue with the mother having the benefit of some legal assistance whilst he was unrepresented.
As I explained to the father at the outset of the trial it would not be legitimate for the Court to deny any party legal assistance or to engage in some kind of “levelling of the playing field” involved in denying a party such legal assistance because the other party was self-represented. The Court usually addresses questions of unfairness or procedural unfairness in these circumstances by following guidelines such as those set out by the Full Court in Re: F: Litigants in Person Guidelines (2001) FLC 93-072. Moreover, as already noted both of the parties and the Court had the assistance provided in consequence of there being an experienced ICL appointed to independently represent the child’s interests in the proceedings and the ICL instructed experienced counsel to appear.
Relevant background
The parents met in about 1996 and both have described an “on and off” relationship thereafter for about two years. In about 1998 they commenced cohabitation and in about 2001 they bought a house together. The parents have never married.
As already noted, the child was born in 2003. The mother contends that the parents separated when the child was about three months old. The father contends that separation occurred in April 2004 when he physically left the home. Whilst physical separation occurred then, it is clear on either parent’s account to the family report writer, Ms E that the relationship between the parents, already troubled prior to the child’s birth, broke down soon after her birth.
B was primarily cared for by her mother from the time of her birth and that has remained the position from the time of her parents’ separation, significantly an event which occurred at a time when the child was very young.
The maternal grandparents took an active role in providing support to the Mother in the child’s care from an early stage including also to allow the mother to make a return to study and to employment.
The father commenced a relationship with Ms F in about August 2003 (the mother relates this temporally to the parties’ separation) and the father commenced living with Ms F in April 2004.
In October 2004 the father commenced parenting proceedings in the then Federal Magistrates Court which culminated in a contested trial and final parenting orders being made on 8 September 2006.
Whilst the father had agitated in that 2006 trial for parenting orders to be made for the child to spend equal time with each parent, the Court ordered, in summary that “both parents have responsibility for the long-term care, welfare and development of … the child”; for the child to live with the mother and have gradually increasing time with the Father culminating in the alternate weekend time and half-holiday time already referred to. Notably, as already noted, there was also an order for the child to spend each alternate Tuesday overnight with the father.
I interpolate here that the father confirmed in his oral evidence before me that in the 2006 trial he had contended for an order for equal time; and part of his case involved allegations that the mother’s lack of proper attention to the child’s hygiene when she was a baby or toddler had led to the child suffering infections and ultimately permanent kidney damage.
In 2010 the mother married Mr D, a USA citizen. Mr D has worked in a number of countries and during 2011 and 2012 was working on a contract basis in the Country G (“G”). It was originally contemplated by the mother and Mr D that Mr D would move to Australia and undertake the same kind of construction work in Australia when his work in Country G ended. However, it became apparent when that prospect was investigated by the mother and Mr D during 2012, when Mr D was in Australia, that for Mr D to qualify to be able to do the same kind of work in Australia, he would be required to undertake some four years of re-training. That was not viewed as feasible. Mr D has thus returned to the USA and works in the USA in construction and he and the mother have maintained a long distance relationship for a significant period now with some visits by each of them between the two countries taking place.
Since early 2009 the father, having terminated his previous relationship with Ms F, has lived with his current partner Ms H. In 2011 they relocated from the M Town area where the father had been living since separation from the mother, and which was proximate to the mother’s residence at K Town and the child’s school at C School, to I Town, near J Town. On the father’s evidence that relocation of residence put about 60 kilometres distance between the residence of the child and the mother and his new residence. The result was that the alternate Tuesday overnight time and Sunday overnight time under the 2006 orders was rendered impractical. Thus the father’s relocation had the consequence of a reduction in the child’s time with the father from four overnights per fortnight to two overnights per fortnight. Only in relatively recent times has the father again availed himself of the alternate Sunday overnight times.
In 2011 the mother sold her home at K Town and she and the child have since lived with the mother’s parents nearby at L Town. the child has maintained her schooling at C School. As earlier noted, the child’s maternal grandparents have continued to provide practical support of the mother in her primary care role for the child, including with respect to the mother’s study and work commitments. The mother is now a qualified professional and in 2014 attained her PhD qualification in her profession.
As will be further discussed below, there has been significant conflict between the parents surrounding the mother’s proposals from time to time for her and the child to visit the USA in recent years. That conflict has culminated in a number of Court applications and orders that will be further referred to.
As will also be further discussed the mother raises issues concerning the lack of financial support provided by the father; and his election from time to time not to have the child spend all of the time with him as provided for in the 2006 orders.
In October 2013 the mother instituted these proceedings seeking, inter alia, an order permitting her to relocate the child from Australia to the USA.
Statutory framework
Part VII of the Act provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
(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.
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents, the Court to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
(3) For the purposes of subsection (2), 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.
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed (at [9] of the judgment):
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
At [13], the High Court held:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Further, of particular significance to a case such as this, where there is the prospect of international relocation of a child, I note that at [15] of the judgment, the High Court held:
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of this Court considered an international relocation case subsequent to the decision of the High Court in MRR v GR (supra). At [140] of their reasons, the Full Court said:
… however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applied. That does not mean that such a finding could not be made at an early stage of reasons for judgment provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.
At [334] and [335], the Full Court dealt with the order in which the statutory provisions in Part VII are best considered and said:
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests the court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the “best interests” considerations and they must be considered.
There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2): Mazorski v Albright (2007) 27 Fam LR 518 per Brown J.
After considering the requirements in s 65DAA, at [374] of their reasons, the Full Court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:
As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.
At [375] of their reasons, the Full Court said:
Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.
The Full Court, by reference to authority, affirmed the principle that the Court must meet the legislative requirements under subsection (5) of s 65DAA as a mandatory requirement.
Approach to parenting cases
It seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including a case such as this involving a proposed international relocation:
(a)identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238);
(b)informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra));
(c)consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b));
(d)in determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]);
(e)next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4));
(f)if, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B;
(g)if the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i. whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii. whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time;
(h)the questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above;
(i)to answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in [15] of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
I note that by the express terms of s 65DAA that section is only “triggered” if a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child.
Reference to the “best interests” considerations in s 60CC of the Act makes it plain that in every parenting case it is necessary to consider the relevant factual history of the parties; the relevant factual history relating to the parenting of the child the subject of the proceedings; the current arrangements as well as the proposals of each party for future parenting arrangements, amongst many other considerations.
In other words, the process is not undertaken in the abstract or in a theoretical context, but must have regard to the particular child and the particular past history of that child and his or her parents with future parenting proposals considered in the context of that background.
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by orders which do not give one parent “optimal” arrangements or outcomes.
As Kirby J said in AMS v AIF (supra) at 207 - 208:
… 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. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
By the same logic, the Court is not bound by the parties’ proposals in the sense that only one or other proposal can be reflected in parenting orders. The statutory imperatives demand that the Court must consider proposals which meet the “best interests” criteria independently of the proposals of the parties, although, of course, the parties’ own respective proposals must be carefully considered and taken into account and procedural fairness must be accorded to the parties in respect of alternate proposals the Court might consider (AMS v AIF (supra) and U v U (supra)). It is essentially by reference to the parties’ competing proposals from which the assessment of “best interests” considerations proceeds as well as any alternative proposals the Court might contemplate.
Respective proposals of each party
I have already, at the outset of these Reasons, set out the central thrust of the proposal of each parent and of the ICL.
In the case of the ICL her proposal was documented in “Proposed Minutes of Orders by Independent Children’s Lawyer” provided at the submissions stage of the trial. Those proposed minutes (in their amended and final form) are Annexure “A” to these Reasons.
Obviously enough, as earlier noted, the ICL’s proposed orders embrace the conclusion that it is in the child’s best interests for the Court to make orders permitting her relocation to the USA to live there with the mother.
The ICL’s proposed minutes as ultimately provided to the Court adopt the minor changes to an earlier version submitted on behalf of the mother. That is, the proposed minutes of orders of the ICL in their amended form are adopted by the mother as her proposal for the orders to be made in the child’s best interests.
Each of the ICL and the mother contend for an order that the mother have sole parental responsibility for long-term issues, whatever the outcome of the case otherwise. That is, whether or not the child’s relocation to the USA is permitted each of the ICL and the mother contend for an order for the mother to have sole parental responsibility with respect to long-term issues.
I interpolate her that in her private practice as a consultant psychologist the mother anticipates that even if she is based in the USA she will continue to have Australian-based patients with whom she will undertake psychology work via the Internet. Use of the Internet allows the mother to undertake work on a home-based basis. This would be supplemented by the mother’s plans to make regular visits to Australia for weeks at a time when she would be able to see Australian-based patients on a face to face basis. The mother confirmed in evidence that she had advice to the effect that, as a result, her travel costs to and from Australia would be tax deductible with respect to Australian sourced income from Australian-based patients. Against this background the mother had at one time contemplated that the child could be home-schooled in the USA and accompany the mother on her visits to Australia to achieve greater flexibility. However, at least in part in response to the father’s opposition to the child being home-schooled the mother’s proposal in terms of orders crystallised into that outlined, with the child to attend a school in the USA.
In terms of education the mother and Mr D plan to enrol the child in a school in the USA which is similar to the child’s present school, C School. Mr D confirmed in his evidence that by reason of his current employment with a local municipality in the USA a school equivalent to C School, or that which would be regarded here as equivalent to a private school, can be accessed for the child at no, or no substantial, cost.
If the child’s relocation to the USA is not permitted by the parenting orders made the ICL contends for orders being made for time with the father similar to the final orders that were made on 8 September 2006. That is, the ICL opposes the father’s proposed orders for equal time. The ICL contended for only minor variations to the final orders made on 8 September 2006 with those orders being supplemented by an order in the same terms as paragraph 4 of the orders made by Judge Coates in the Federal Circuit Court on 25 June 2013 which is in the following terms:
That each party be permitted to take the child out of the jurisdiction of the Commonwealth of Australia provided he or she provides the other party with:
a. 30 days notice in writing of the proposed travel arrangements;
b.a written itinerary for travel, including details of flights and accommodation;
c.a copy of the return ticket to Australia for the children and the travelling parent;
d.proof of appropriate travel health insurance for the child and the travelling parent; and
e.a contact number or numbers and contact addresses at which the child and the travelling parent may be reached while overseas.
In addition the ICL contended for an order that would enable the mother to retain possession of passports for the child.
The only significant change to the 2006 final orders the ICL contended for on this scenario was, as already noted, that there be an order for the mother to have sole parental responsibility with respect to decisions about long-term issues for the child.
The mother’s position if the child’s relocation to the USA is not permitted is similar to that of the ICL but the mother provided proposed minutes of orders on that scenario which are annexed as Annexure “B” to these Reasons.
I accept the mother’s unequivocal evidence that if the child is not permitted to relocate to the USA the mother will not leave Australia without the child. That acceptance renders nugatory the father’s proposed orders predicated upon the mother leaving Australia to live in the USA even if the child is not permitted to relocate from Australia. That is, for orders for the child to live with him.
As earlier noted, the father’s proposed orders if the child remains in Australia with the mother is for there to be an order for the parents to have equal shared parental responsibility and for the child to spend essentially equal time with both parents. On the scenario that the child remains in Australia the father proposes an order, as per his written submissions filed on 20 March 2015, in the following terms:
That the father within three (3) months relocate his usual place of residence to within fifteen (15) kilometres of [C School] located at …, [L Town] in the State of Queensland.
If the child is permitted to relocate to the USA the father sought orders for time which would see the child spending the bulk of the long USA school holiday period in June/July with the father in Australia. It seemed to be agreed that that holiday period lasts for some 66 days and the father sought that the child spend some 40 days of this period with him in Australia. He also sought, in alternate years, 14 days at Christmas time and the capacity every year for him to travel in February to the USA and for the child to spend nine days of that period with him. He proposed that the mother be responsible for 60 per cent of travel costs. He also proposed orders for communication via weekly Skype sessions and regular telephone communication.
In the event that the child was permitted to relocate to the USA the father also sought orders which would provide mechanisms for monitoring the child’s progress in the USA every six months over the next two years. That monitoring and mechanism would obviously include orders providing for review by the Court of any initial order permitting the child’s relocation to the USA to occur or be maintained.
Both the ICL and the mother opposed orders providing for any such mechanism or review of orders.
Consideration of and findings about the s 60CC considerations
The evidence before the Court included two family reports prepared by Ms E, Social Worker. Ms E also provided oral evidence and was available for cross-examination by all parties.
For the purpose of her first report Ms E reviewed the documentation set out in her report dated 23 May 2014 and undertook interviews with each of the father and her partner Ms H; the mother and her husband Mr D; the maternal grandparents; and the child herself.
For the purpose of her second report Ms E reviewed the documentation set out in her report dated 8 March 2015 and undertook a further round of interviews on 12 February 2015.
Thus it is that the Court and the parties were assisted by expert assessments undertaken by Ms E in both April 2014 (report dated 23 May 2014) and February 2015 (report dated 8 March 2015).
Ms E’s curriculum vitae is attached to each of her reports. I am satisfied that Ms E “has specialised knowledge based on the person’s training, study or experience” within the meaning of s 79 of the Evidence Act 1995 (Cth). Moreover, there was no challenge by any party to the accuracy of the factual matters recorded by Ms E in her respective reports. Further, no party challenged in cross-examination any of the opinions or conclusions reached by Ms E. Cross-examination elicited expansion upon Ms E’s opinions as expressed in her reports rather than constituting any attempt to challenge those opinions.
I am satisfied that Ms E undertook a detailed, careful and balanced assessment as an independent expert and made all necessary enquiries relevant to the opinions she expresses. I accept the opinions of Ms E both as expressed in her respective written reports and as further outlined in her oral evidence.
Taking into account Ms E’s evidence (both her reports and oral evidence) with the other affidavit and oral evidence which will be referred to, where necessary, I record within the following findings which resonate with one or more of the s 60CC considerations.
B’s life experience to date is of her mother’s primary care. Whilst the child loves both of her parents, and has a well-established and meaningful relationship[2] with both of her parents which is to her benefit, her primary attachment figure is her mother.
[2]Within the meaning of s 60CC(2)(a) of the Act.
Obviously enough if the child and the mother were to remain in Australia the child’s meaningful relationship with both of her parents will continue to be facilitated. Important though is Ms E’s evidence, by reference to the mother’s proposals for time and communication with the father if the child is living in the USA, to the effect that the child’s meaningful relationship with the father will be maintained in that context. Ms E specifically referred to the history of the child’s relationship opportunities with the father, and her age and level of development and regular opportunities in future for electronic communication (apart from face to face time) as central to that opinion, which I accept. I find that this is not a case where the proposed relocation of a child, if it occurs, will prevent either the establishment or the maintenance of a meaningful relationship between the child and the non-relocating parent.[3] I find that the child has a well-established and meaningful relationship with the father which will be maintained under the mother’s proposals for time and communication if the child is living in the USA.
[3]See Adamson v Adamson (2014) 51 Fam LR 626.
B also has a positive relationship with the father’s partner Ms H that has developed over the now lengthy period since 2009. By the same logic as applies in relation to the father, there is no reason to suppose that there would be a curtailment or limitation of that relationship on either outcome concerning the relocation issue. The same may be said of the paternal grandmother and other extended paternal family members.
The nature of the child’s relationship with her maternal grandparents and the extent of her connection with them is obviously founded substantially upon their extensive involvement in the child’s life to this point. I am satisfied that the child’s relationship with her maternal grandparents is well-established and is solidly based. Undoubtedly the child’s relocation to the USA will entail a significant change to the child’s experience of that relationship as she is used to living with her maternal grandparents in their home. However, taking into account Ms E’s opinions I accept that the proposed relocation would in one sense “normalise” the role of the maternal grandparents in the child’s life and it is obvious from the extent of visitation contemplated, as well as electronic communication, that the child is at an age and level of maturity that she is readily equipped to maintain the strength of her relationship with the maternal grandparents and, given the history, there cannot be any doubt as to the commitment of the maternal grandparents to do likewise.
The father’s parenting role to date has been confined largely to weekend and holiday time. The father has never performed a primary caring role for the child beyond such times and the child has never experienced the father’s primary care in terms of attending to day to day life outside of weekend and holiday time. I accept Ms E’s opinion to the effect that the father has not taken opportunities to take a more “active parenting role” as she put it given that that opinion is supported by the following features:
(a)the father elected in 2011 to relocate his residence from M Town (proximate to the mother and the child) to I Town, rendering the alternate Tuesday overnight time and Sunday overnight time provided for in the 2006 orders impractical. That halved the child’s overnight time with the father from four overnights to two overnights per fortnight. In his evidence the father referred to the I Town property being able to be secured at an attractive rate of rent; and that it was large enough to accommodate his two dogs. However, he did not identify anything that could be characterised as an imperative for his relocation, balanced against the consequences of that relocation in terms of the child’s time with him;
(b)the mother’s case is that the father has historically elected not to have the child spend all of the time with him as contemplated by the 2006 orders. I accept the accuracy of Annexure 3 to the mother’s affidavit filed 5 March 2015 (the accuracy of which was not challenged by the father). In that Annexure the mother sets out in detail for the years 2010 to 2014 (inclusive) the child’s scheduled time with the father under the terms of the 2006 orders and the actual time the child has spent with the father over that period. This comparison reflects a very significant difference between ordered time and time actually spent over each of the years referred to;
(c)I accept the mother’s evidence, taken also with the evidence given by the father under cross-examination by counsel for the ICL, that the father has been historically recalcitrant in meeting his child support obligations at even relatively modest levels. I accept the mother’s evidence of a pattern of the father only attempting to remedy substantial arrears of child support as Court events approach. That occurred in respect of this trial in that taxation refunds due to the father were withheld by the Australian Taxation Office to meet arrears of child support; and otherwise the father made a lump sum payment of $950.00 only in the week or so prior to the commencement of this trial;
(d)save to the extent that the father’s modest level of child support (when he pays it) constitutes a contribution; the father has left it solely to the mother to meet all the substantial expenses for the child referable to her private school fees and associated expenses and extra-curricular activities. I accept the accuracy of Annexure 2 to the mother’s affidavit filed 5 March 2015 which sets out these expenses, the accuracy of which was not challenged by the father.
In my judgment it is clear that the father has historically failed to fulfil his obligations to maintain the child and that in combination these matters demonstrate a sub-optimal attitude to the child and to the responsibilities of parenthood.
I accept Ms E’s opinion that it is the mother who has done, as Ms E put it, the “hard yards” in terms of the child’s parenting. Ms E referred to the father having weekend and holiday time with the child and not having to undertake basic day to day life activities with the child such as, in the examples Ms E referred to, the undertaking of homework or day to day chores.
I accept Ms E’s opinion that the child presents as an “absolute delight” and is well-mannered and articulate. In this context Ms E referred to the mother, given her primary caring role, as having performed well as a parent given the child’s overall presentation including that the child has achieved well at school.
I interpolate here that I am satisfied that the mother places a high value on education. She herself speaks four languages and has undertaken tertiary level education and holds a PhD qualification. For the child, despite the lack of financial support from the father, the mother has ensured the child’s education to date at a private school, C School and has, as noted, been solely financially responsible for those fees and for a range of extra-curricular/educational activities for the child.
For his part the father initially opposed the child’s attendance at C School but subsequently accepted the merits of the education there provided. However, that acceptance has apparently not been accompanied by any willingness on the part of the father to contribute to the significant costs associated with the child’s education and extra-curricular activities, as set out by the mother in Annexure 2 referred to.
Given the now long history of the respective and contrasting parenting roles performed by each parent; and the manner in which each parent has performed that role, I consider that taken with the findings overall as to the s 60CC considerations the likely effect on the child of any significant change now to the nature of the respective role of each parent performed to date would be adverse to the child’s best interests. The mother has capably performed her primary parenting role. The father is untested in performing any role akin to a primary parenting role such as an order for equal time would entail or indeed any significant expansion upon the child’s time with him historically would entail. In my judgment it could not be concluded that the father presents a credible alternative for the child to live with him.
I accept Ms E’s opinion that an order for the child to spend equal time with each parent “won’t work for the child”. Ms E referred to the historical inability of the parents to negotiate and make joint decisions as demonstrating that they would be unable to manage or support a 50/50 shared care arrangement and by reason of the child’s knowledge and exposure to parental conflict historically, Ms E emphasised that the child must be protected from parental conflict. The effect of Ms E’s evidence is that it would be inevitable that an equal time arrangement would result in further conflict between the parents and be detrimental to the child. There are other reasons, as will be outlined in recording findings below, why it is concluded that any such arrangement would not meet the child’s best interests.
I find that it provides an important insight into the father’s negative attitude towards the mother that in the case he presented not only did he not give any credit at all to the mother for the quality of the primary parenting role she has performed throughout the child’s life to date; and the extent to which the child’s presentation as referred to is a product of the mother’s performance of her role; the father mounted a case highly critical of the mother’s capacity to provide for the child’s needs.
The high point of that case was the assertion that the mother’s lack of attention to the child when she was a toddler resulted in the child suffering from numerous infections resulting in permanent kidney damage. The lack of attention is alleged to comprise a failure to attend to basic hygiene needs for the child. The father confirmed in oral evidence that he mounted this same case in the 2006 trial. Whilst the reasons for judgment of Federal Magistrate Baumann (as his Honour then was) were not read before me, the necessary implication of the final orders that were made in 2006 is that there was not found to be any substance in the father’s case in this respect.
That is unsurprising given the content of the letter from Dr N, paediatric neurology fellow of the O Hospital addressed to Dr P, paediatrician at the Q Hospital dated 23 August 2005 which is annexed to the father’s affidavit filed 16 December 2013.
After noting with respect to the child that “all aspects of her development have been good and indeed above expected for her age” Dr N’s letter states:
[B] has had urinary tract infections and was diagnosed with a dilated right collecting system for which she is being treated conservatively.
(Emphasis added)
This being the only medical evidence put forward it would seem obvious that the difficulties for the child have been caused by a diagnosed physical abnormality. There is no suggestion whatsoever in this, the only medical evidence put forward by the father, that the child’s problems have anything at all to do with any lack of attention to her needs by the mother.
The father also enlisted his present partner Ms H to provide an affidavit in an attempt to advance a negative case about the mother’s care. Ms H was cross-examined before me and I did not find her to be an impressive witness on the topic of the event in 2009 about which she was cross-examined. It seemed to me that her evidence concerning an event in May 2009, the gravamen of which was that the child’s safety was put in danger by the mother’s alleged failure to attend to repairs of a seatbelt involving also the allegation that the mother reversed her car “with such anger and speed that she nearly hit the child who was standing in the driveway”; disassembled under cross-examination by counsel for the ICL.
Viewed objectively it seems to me that the evidence provided by Ms H and the negative case mounted by the father reeks of desperation to exaggerate or embellish matters from 10 years ago and 6 years ago respectively in an attempt to advance a negative case fundamentally challenging the mother’s parenting capacity when the fact is that overall, overwhelmingly, the evidence confirms that the mother’s performance as a primary carer has been excellent.
In these circumstances it follows, I find, that there must be considerable doubt that the father or Ms H would be likely to promote the mother to the child in terms of promoting that relationship.
Ms E assessed, and I accept, that the parents have been unsuccessful, over the now lengthy post-separation period of more than a decade, in achieving successful and positive co-parenting of the child. Ms E referred to “parallel parenting” rather than co-parenting. There has obviously been, I find, very significant conflict in the parental relationship. Whilst the mother is not entirely blameless for that conflict (for example, the nature of her communication with the father has not at all times been optimal; and nor has she necessarily kept him as fully informed about health and other issues for the child as she might) in my judgment the overwhelming preponderance of the evidence is that the father is primarily responsible for the extent of the conflict that has existed. I accept the mother’s contention that the father seeks to exert control whenever he can and is unreasonable.
One important example is the history of the mother cooperatively altering arrangements for the father’s time at his request when work or other commitments caused him to seek alteration, but there is precious little evidence of the father acting similarly. The father agreed, during the course of his cross-examination, with the proposition I put to him that on the paradigm of “give and take” he was good on the “take” but not on the “give”.
The father’s unreasonable approach, I find, resulted in the child not having the opportunity to travel with the mother to the USA to be present for the mother’s marriage to Mr D in 2010. In respect of that event I find that the father deliberately put as many hurdles in the way concerning travel arrangements as he could, and ultimately succeeded in denying the child that opportunity, as a result.
Another stark example relates to the proposed 2013 visit to the USA. On 25 June 2013 orders were made by Judge Coates in the Federal Circuit Court of Australia including paragraph 4 of those orders which is as set out above. Paragraph 4, as already noted, provided a mechanism by which notice could be given of proposed travel and relevant arrangements with respect to travel.
Pursuant to that order, on 24 July 2013 the mother emailed the father with proposed travel dates for herself and the child to the USA, including airline tickets and travel insurance with proposed travel from 21 September 2013 to 30 September 2013. The father responded by email on 28 July 2013 opposing the mother’s proposed dates of travel on the basis that the father’s holiday time was to commence on 30 September 2013. Further, the father opposed the child having to “recover” from the trip in his holiday time. The father requested that the mother change her bookings, but refrain from booking anything without discussing it with him first.
This is, it will be remembered, in circumstances where over the years the father has often not taken all of the opportunities to spend time with the child as detailed in the Annexure earlier discussed. It is also against a background of the mother meeting the father’s convenience when he sought to alter scheduled arrangements.
Nevertheless, the mother sought to accommodate the father’s request by amending her booking to a flight leaving mid-morning on Friday 20 September and returning 29 September around mid-morning. The mother noted that she had contacted the school and confirmed that the child’s academic assessment would be completed by the last day of school (20 September 2013) and the child would therefore not be impacted by missing the last day of school. Nevertheless, the father opposed these arrangements on the basis that the child would be missing the last day of school. (That is, for a grade 6 child, the last day of a term). The mother again confirmed on 1 August 2013 that the child missing the last day of term would not impact her academically. Nevertheless, the father maintained his refusal to consent to any arrangements that would see the child miss school on 20 September 2013 and stated that he would be confirming her attendance at the school on that date.
In an effort to meet all of the father’s (unreasonable) demands, on 23 August 2013 the mother emailed the father with revised E-tickets for her and the child, departing on 21 September and returning on 29 September 2013. Remarkably, given that this topic had been live for months by then, the father responded on 28 August 2013 refusing to consent to the travel on the assertion that the mother was only providing 28 days notice of the revised travel plans, not 30 days notice in accordance with the order.
That demonstrable and gross unreasonableness on the part of the father necessitated the mother bringing an application to the Court. Judge Spelleken unsurprisingly, made an order on 16 September 2013 allowing the mother to travel with the child to the USA on the mother’s then most recently proposed travel dates.
This example provides a stark illustration of the complete lack of cooperation evident in the father’s approach concerning co-parenting. Against a background where the mother has demonstrated a history of accommodating changes he requires; and in circumstances where he has effectively chosen to forfeit a significant amount of the time he could have spent with the child under the orders (in the 2014 year the father spent 99 nights with the child out of the 154 nights he was entitled to under the orders) yet it is that the father acted as he did, as set out above.
In my judgment the father does not have the capacity to co-parent cooperatively and, to the contrary, does, as the mother says, seek to exert control given any opportunity to so do.
Conversely, I find that the mother has historically demonstrated a clear capacity and willingness to provide for the child’s needs in terms of her need to have a relationship with her father. In this context the “proof is in the pudding” as it were. The parents separated when the child was a baby and the fact is that now, more than a decade later, the child has a positive and meaningful relationship with the father. That is not only because of the 2006 orders. The mother has demonstrated a capacity to be flexible from time to time in altering arrangements at the request of, and to suit, the father and his convenience. That has been so despite the father’s historical failure to reciprocate in terms of flexibility of approach; his historical failure to keep up to date with even modest levels of payments of child support; and his historical failure to assist at all financially with the child’s private school fees and associated expenses.
Mr D, the mother’s husband, provided affidavit evidence and attended at the trial for the purpose of being available for cross-examination. Having observed Mr D give evidence under cross-examination I accept the submission on behalf of the ICL that Mr D was an impressive witness. I find that Mr D is genuine when he says, by reason of his own personal experience of a mother of his child acting to deny him a relationship, that he is, as he put it, “an advocate for the rights of the father.” I find that Mr D is committed to ensuring that the mother and the child will be supported financially and that he is committed to maximising their welfare; and is committed to promoting the child’s relationship with the father.
I accept that Mr D’s evidence that his relocation to take up a government job within the town of R Town, S State is directed to achieving stable financial security and regular work hours and associated benefits; including health benefits, to be available also to the mother and the child should they be living in the USA. I accept that Mr D is committed to their financial support. I accept his evidence as to the financial security and stability he can provide. I accept that Mr D has a demonstrated commitment to his marriage to the mother given the circumstances that have prevailed that have denied them the ability to live continuously together in either Australia or the USA since they married. In this respect I accept Ms E’s opinion to similar effect in terms of the strength and stability of the relationship and marriage displayed between the mother and Mr D in difficult circumstances.
I am mindful that in Taylor & Barker (2007) 37 Fam LR 461 the Full Court rejected a ground of appeal to the effect that the Federal Magistrate should have made a finding about the likelihood that if the mother was not permitted to relocate with the children to North Queensland her partner (with whom she had a child) might come to live with her in Canberra. That decision seems to be authority for the proposition that the possibility of a relocating parent’s partner moving to live in the place where the child has been living cannot be taken into account in relocation cases. That noted, I accept the evidence of the mother and Mr D that they seriously investigated, during 2012, the prospect of Mr D being able to pursue his career in Australia. I accept the evidence that for Mr D to do so he would require some four years of re-training and that at his age and stage in life that is not feasible. Thus, to the extent that it may be thought to be necessary to consider this, I reject that it is reasonable or likely that Mr D would relocate to Australia if the mother is not permitted to relocate to the USA. Put another way, it is no more likely that Mr D would relocate to Australia than is the prospect of the father relocating to the USA if the child is living there.
I accept Mr D’s evidence that he is effectively at the height of his career in his present employment in the USA as a senior officer in a municipality building department providing him with a high level of earnings and stability of employment and regular work hours and other employment benefits, such as health benefits. Mr D thus has a very sound financial base to provide for the needs of the mother and the child if they were living with him in the USA as well as the capacity to fund travel for the child for visits to Australia. As already noted, I accept that Mr D has a commitment to so do if the child’s relocation is permitted.
The Court is required to consider any views expressed by the child and any factors (such as the child’s maturity or level of understanding) relevant to the weight to be given to the child’s views.
It has long been recognised that a number of factors, frequently overlapping, need to be considered in assessing a child’s views and/or in determining the weight to be given to those views. These factors include:
· The child’s age and level of maturity.[4]
· The strength of the views, and the length of the time such views have been held by the child.[5]
· The extent to which the child’s views appear to be based on a choice that is well thought through and based on appropriate as distinct from irrelevant or peripheral matters.[6]
· The extent to which the child’s views are the result of pressure on the child, or emotional attachment of the child, and thus how far they reflect the child’s own choice.[7]
· The likely consequences of an order contrary to the child’s views.[8]
[4]Joannou & Joannou (1985) FLC 91-642.
[5]Wotherspoon & Cooper (1981) FLC 91-029; Cartlege & Cartlege (1977) FLC 90-254.
[6]Mitchell & Mitchell (1984) FLC 91-531.
[7]R v R (Children’s wishes) (2002) FLC 93-108.
[8]Radford & Alpe (No. 2) (1985) FLC 91-622.
It needs to be emphasised that the Court is to give a child’s views such weight as the Court considers appropriate in the circumstances of the case. In R and R (2000) FLC 93-000 the Full Court noted in speaking of “wishes” rather than “views” as the Act then provided:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case. It is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all of the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children’s best interests.
When the child was interviewed by Ms E for the first of her family reports she had just turned 11 years old. It may fairly be observed that the child expressed a number of views which were negative of the father as well as views expressing a clear preference that she live in America. For reasons important to later discussion about Mr D, it is instructive that the child expressed this preference knowing, obviously, that this would involve her living in the same household. I note in particular the following contents of Ms E’s first report:
132.At the commencement of her family report interview, the child had tears in her eyes. She was anxious about [Mr Grant] finding out what she said, “I don’t mind if you tell my Mum but I don’t want Dad to hear it ‘cos he’ll get really mad.”
133.[B] spoke about [Mr Grant] having upset her in the past (e.g. she phoned him and thought it was a game that he said he didn’t know her, then he had sworn at her) and that she remembered him hitting [Ms F] many years ago. Recently, when she was talking about visiting America he had upset her by talking about dangers there (e.g. people took guns to school and shot people and there were robberies). the child reflected that every country was unsafe in its own way. She felt he was trying to sway her against America.
134.[B] expressed a clear preference to move to America. She explained that she felt burdened in Australia but she would be away from pressure if she was in America. She related “if I was in America, I wouldn’t have all the burdens that I’d had since I was little – like going to Court.” the child related she was constantly thinking about all the problems, even at school.
135.[B] explained that sometimes she did not want to go to see [Mr Grant] because she felt stressed. “If I have a test coming up, going to his place is the last place I want to go.” the child related she did not ask to go to [Mr Grant’s] home because she was scared when he went out drinking with his friends. She referred to an incident that upset her at age 8-9 when he had a poker night with friends and had stayed up all night drinking and swearing. the child referred to a similar event a few weeks’ previously – “Dad and [Mr T] were up all night drinking and farting. That was gross.”
136.[B] made positive comments about [Ms H] and related “when Dad gets angry, she comes and makes me feel better.” the child tried to summarise her feelings about [Mr Grant’s] household – “something doesn’t feel right when I’m there.”
…
139.[B] perceived [Mr Grant] was pressuring her. She claims that when she wanted to swap weekends so she could work on a school project with her friend, [Mr Grant] kept asking her why she didn’t want to come to his place. [The child] felt she should be allowed to say if she wanted to spend the weekend at her mother’s home. She maintains her mother would agree without questioning to her going to [Mr Grant’s] if she asked for this.
140.[B] asserted she no longer wanted to be forced to go to [Mr Grant’s] home every second weekend. She was aware the Court orders required her to go. [The child] stated “I don’t want to be pushed around anymore. I want to go to America so I can come when I choose.” [The child] explained she was intending to be fair – spending time with both her mother and [Mr D] as well as her father and [Ms H].
…
143.[B] expressed her frustration with [Mr Grant]. She did not understand why he would not let her go to America, nor did she understand why he did not want her to have a passport. She described him as “sneaky” in that he didn’t spend holidays with her but insisted on having her for weekends, so she couldn’t go to America. She referred to having been unable to go to her mother’s wedding. “I don’t know what the fuss was about. I would have loved to be there but he wouldn’t let me.” Significantly, the child also stated “I feel Dad is trying to ruin my life with all my [Ververs] family.”
144.[B] acknowledged she would miss family and friends here if she moved to America. She intended to stay in touch through skype and visits. She reflected that her best friend visited family in Canada but “I can only go to America when Dad’s not acting up.”
145.Although she had strong feelings, [the child] had not discussed these with [Mr Grant]. She claims he kept pressuring her to give him an answer but she had refused to do so and walked away.
146.[B] referred to all the stress in her life as associated with Australia. She described her mother coming home stressed after Court appearances which placed a burden on the whole household. She related “it ruins my day because of Court and my Dad.”
147.She asked for the Court to be told her preference was to move to America. She stated “I want my freedom.” She explained that she wanted to leave behind all the stress and conflict and instead to have a peaceful life. [The child] commented that if she didn’t like living full time in America, she could at least return refreshed to Australia.
148.If the Court were to decide she was to live with her father, [the child] asserted “I’d cry every day. My life would be ruined.” the child was fearful her father would take her away from [C School]. She was aware he did not pay her fees currently. She was worried he would send her to a state school where she feared people would make fun of her for praying.
149.If the Court were to decide she spent each holiday with [Mr Grant], the child suggested this would be better than living with him. She felt however that she would still be under the control of the Court and her father whereas she wanted to be free.
It is clear from the child’s statements as recorded by Ms E that even prior to the first interview the father was obviously applying pressure upon the child in terms of negativity concerning her prospective relocation to the USA and, in effect, pressuring the child to express a view contrary to the mother’s proposed relocation.
What is clear from what the child said in the first interview (and it will be seen this is also clear from the second interview) the child was not expressing any view to the effect that the time she spends with the father be expanded upon. She has never expressed a view to live primarily with the father.
As already noted the child was again interviewed on 12 February 2015 by Ms E for the purpose of the second of her reports. In that report Ms E describes the child “dissolving into tears” and then the following:
103.[B] explained her tears – “it’s stressful doing this.” She stated she was not stressed by the report writer. Her stress was “I’m scared I’ll say the wrong thing and end up in the wrong place.”
104.[B] related her opinion had changed from the previous interviews. She now wanted to remain in Australia. She explained “last time I only looked at one tiny part of it all, not the whole situation.” She stated she would miss her school friends who supported her. She stated that if she went to USA she would only have her mother whereas in Australia she had access to all her family. She felt she would be happier if she was able to see her family whenever she wanted to do so. the child added that it was costly and stressful to fly back and forth on planes. She did not enjoy flying as it made her feel sick. the child summarised “if I go overseas I’ll be upset all the time and I won’t be able to see my family and I’ll lose my amazing friends and I’ll have to start a whole other life which I don’t want.”
105.[B] had found it helpful to discuss her feelings with the school counsellor. She had gone for a counselling session the first week back at school and had planned to see the counsellor the day before the interviews but a school excursion intervened. There are no counselling notes in the subpoenaed material.
It is clear from the second report that the child identifies the “solution” as being for Mr D to relocate to live in Australia. Ms E records the following in that respect:
108.[B] attributed blame for the current situation to [Mr D] and her mother. “If [Mr D] wants to, he could move here. We’re only doing this because Mum wants a fresh start.”
109.Her optimal outcome was “I’d make everyone not argue, [Mr D] move here, life go back to normal like before. I’d like my life like before the Court case with only the normal amount of arguing.” [The child] referred to her whole life as having been affected by arguing. She stated that everyone, including her, was tired of this.
110.[B] was well aware of the underlying tension between her parents. [The child] noted they would not sit in the same room if they had a choice. She related that at her awards nights they always sat a few rows apart.
111.If the Court ordered she could relocate to USA, the child related “I’d feel horrible and more stressed out than now. I’d be homesick for my friends and family.”
112.If the Court ordered she live with her father, the child stated she did not think her mother would move to USA without her. If her mother did go, the child said she would miss her but [the child] would still have her friends and family in Australia. [The child]. related her father had explained he would move closer to her school, so she could stay there. She added “I believe he’ll pay my school fees. He’s been supporting me through all this and I don’t think he would lie.”
113.The factor that had changed her mind about her preferred outcome was input from her father. “I was only taking in a tiny corner of the whole picture before. My Dad helped me see the whole picture.” Her friends had also helped her see the bigger picture. She told her worries to her friends. [The child] added that she was always scared she would say the wrong thing to her family but she could be open with her friends.
As Ms E assessed in the second report a “pivotal factor” for the child was her wish to remain at the C School and to retain her current friendships.
Ms E assessed the child as being caught in the midst of the conflictual relationship between the parents and being well aware of the tension between her parents. As Ms E put it “[B] loves both her parents and so their entrenched negative attitude towards each other creates pressure on her. Her comment that she does not want to upset either side of her family reflects this.”
Ms E assessed that whatever the Court decides the child is likely to feel relief that a decision has been made. Ms E assessed the child as being emotionally burdened and feeling the weight of responsibility for the decision.
Ms E opines that if the Court were to decide that the child could relocate to the USA she would initially be distressed and she would miss her friends and school. Ms E identifies that the child may have some initial difficulties in adjusting to a different school and home environment. Ms E referred to the ability to maintain contact with family and friends both by electronic means and via visits would assist in the child making that adjustment.
In her oral evidence Ms E emphasised that the child needs and seeks an end to the parental conflict. In this context Ms E wholeheartedly rejected the prospect of there being a lack of finality if the relocation was permitted yet it was to be monitored every six months over the next two years as proposed by the father. As Ms E put it “[B] needs this over”. Ms E emphasised that the child sought to have her life made simple. As Ms E put it, the child should be allowed to “have a childhood” rather than being involved in and exposed to parental conflict which has been effectively her experience of life to date.
In her oral evidence Ms E emphasised that change in terms of school is inevitable for the child. Even if she stayed in Australia she would need to adjust from attending middle school to the move to senior school.
Ms E assessed that the child is not at an age or level of development where she can fully and properly assess all of the factors involved surrounding the relocation issue. That is, the effect of Ms E’s evidence is that the child cannot be expected to weigh up all relevant considerations and the child’s focus is upon her present friendship group and known factors (which in any event will likely change with the progression to senior school) as distinct from fear of the unknown that relocation to the USA presents to the child. For example, whether she will succeed in establishing another friendship group; whether she will like her new school; and a range of other factors are understandable concerns for a child of the child’s age.
Ms E referred to a study undertaken by Cashmore & Parkinson which focused upon the implications for children of a relocation. The effect of Ms E’s evidence was that this study found that as an overall or general proposition children adjust well to their new circumstances.
In that context Ms E thought the child’s presentation demonstrated that she would adjust because of her obvious intelligence and capacity to establish new friendships.
At the time of the second interview the child stated to Ms E (paragraph 112) that she did not think her mother would relocate to the USA without her. That is obviously the fact. This perspective or belief held by the child obviously informs then her statements overall or at least the assessment of the statements made by the child throughout that interview. Undoubtedly the child’s current friends and school are important to her. However, in circumstances where she well knows the mother will not relocate to the USA without her, it is understandable that the child would elevate the importance of her current friendships and her current schooling as well as her current arrangements with family members as being known quantities for her as compared with the unknowns involved in a relocation to the USA in expressing the view she does not want to relocate.
Whilst the conclusion can be reached that as compared with the first interview when she was expressing willingness to live in the USA the child was, as at the time of the second interview, expressing the contrary view, the weight to be given to that view is necessarily limited by reason of the factors referred to.
Put another way, in my assessment, the child’s more recent view that she does not wish to relocate to the USA is not a matter to be disregarded as not relevant, but it is important to place that view in its overall context given the limits upon the child’s capacity, by reason of her age and level of development, to take into account all relevant factors and reject the peripheral or less important factor in considering the issue.
In circumstances where the child perceives it to be a simple solution for Mr D to relocate to Australia (when that is not in fact a practical solution) that highlights the caution to be given in weighing the child’s expressed views.
It can be seen in the second report that the child expressed reservations about her relationship with Mr D. Whilst describing him as “nice” the child asserted that she had “never really liked him from the start”; that she feels “uncomfortable” about Mr D but could not really describe it. After an event she says happened on a recent visit the child told Ms E “I feel like [Mr D] and I don’t get along.”
I interpolate here that when this aspect was put to Mr D he was readily able to give examples of positive interactions with the child but he was also thoughtful and considered about this expressed reservation by the child (as indeed was the mother). It may fairly be observed that in comparison to the child having a well-developed relationship with the father’s partner Ms H, that there has yet to be significant or the same opportunity for the child to develop a relationship with Mr D.
In the course of his evidence Mr D was able to recount positive communications he had had with the child via Skype sessions as well as other positive interactions. I accept this evidence and therefore do not assess the child’s views, with respect to Mr D, as being at a level that is cause for any concern given that it seems to me more likely than not that any negative views expressed by the child in the report process have more to do with her wanting to achieve her ambition of remaining in Australia than of highlighting any real or fundamental difficulties in the relationship between herself and Mr D.
As counsel for the ICL emphasised, the child’s relatively minor expressed reservations about her relationship with Mr D did not extend to any suggestion that she did not want anything to do with him but, to the contrary, the child identified as the solution Mr D coming to live in Australia, obviously entailing Mr D being part of her household.
A final matter which I see as relevant to the mother’s parenting capacity is that there would likely be a negative impact upon the mother if she is not permitted to relocate to the USA, with potential consequences of that for her parenting capacity and thus for the child. It seems to me that this is not a matter of mere unhappiness or disappointment; that is if the mother is not permitted to relocate. It was clear from the mother’s own evidence and presentation that she is stressed by a situation where she cannot live with her husband and the child in the same country. She and Mr D have endured some years now significant disruption to their marriage and relationship. It is plain that the mother is stressed by the relationship she endures with the father and is burdened by the conflict that has characterised that relationship over a long period now since separation and I accept the mother’s evidence in this respect. At paragraph 150 of her most recent report Ms E noted:
In terms of parenting, there is concern that the stress [Ms Ververs] is under has potential to negatively impact on her ability to effectively parent. [Ms Ververs] presents as wanting to co-parent with [Mr D] so she has added support but unable to do so in the current circumstances. Although she has support from the maternal grandparents, they have a different role in the child’s life as grandparents not co-parents.
Resolution
I am satisfied that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her given the consequences of what such an order entails as set out in s 65DAC.
I accept the submission on behalf of the ICL that the order for shared parental responsibility made in 2006 has failed to promote the child’s best interests. I accept that the evidence demonstrates a cycle of parental disagreement, the consequences of which have seen significant distress and emotional turmoil visited upon the child of sufficient concern to her that she has found it necessary to seek the support of a school counsellor.
I accept Ms E’s evidence that the lack of communication ability of the parents is so poor as to be problematic for the child.
I accept the ICL’s submission that the Court should not accept the father’s assertions that the mother has not made efforts to seek his input and agreement to the decisions needed to be made for the child’s welfare. I accept that a pattern of behaviour is evident from the father which involves him in avoiding to commit to any positive action that might further the child’s interests by engaging in criticisms of the mother or withdrawing from the process of decision-making when it suits him.
I am satisfied that the mother has demonstrated an entirely child focused attitude towards the making of parenting decisions about long-term issues.
The parents’ now long post-separation history of more than a decade demonstrates an inability to co-parent and to consult and communicate with each other at a level that would make joint decision-making viable. I particularly note the father’s historical demonstration of the need to exert control in respect of decision-making.
The mother has always been the child’s primary carer. The mother has demonstrated the capacity, over a long period, to make proper decisions about long-term issues for the child’s benefit. Prime examples are in relation to her education and in dealing with her health issues.
In my judgment taking into account the considerations discussed above, it meets the child’s best interests that an order be made for the mother to have sole parental responsibility for long-term issues albeit with a mechanism, as is proposed by the ICL, for the father’s views to be ascertained and considered before a decision is made. This will have the consequent benefit for the child of her not being exposed to parental conflict as regards such decisions.
I am satisfied that the evidence overwhelmingly favours the conclusion that the child’s best interests are served by a continuation of her experience to date of her mother’s primary care. I am satisfied that the mother’s capacity to provide for the child’s needs, physical, emotional and intellectual, would be strengthened and enhanced by the mother having the opportunity to parent not as, in practical terms, a sole parent but within a family unit with her husband Mr D. I am satisfied that this will provide advantages to the child of her experience of the mother’s parenting supplemented by the input from Mr D.
Conversely, I am satisfied that if the child’s relocation were not permitted there is a risk of not mere unhappiness or dissatisfaction on the part of the mother but a risk of something more substantial such as some compromise of the mother’s parenting capacity and a consequent increase to the level of parental conflict. That risk cannot be justified as necessary to take on the grounds of sustaining the child’s meaningful relationship with the father because I am comfortably satisfied, as was Ms E, that the child’s meaningful relationship will be maintained if she is living in the USA.
Similarly, whilst it can be readily accepted that the context of the child’s relationships with each of Ms H and paternal family members will be different; as indeed will the context of her relationship with the maternal grandparents; I am satisfied that those relationships will be maintained for the child’s benefit both because of the willingness and capacity of the mother and Mr D to promote them and also because of the time and communication opportunities that will be made available on the mother’s proposal.
I accept Ms E’s evidence that for both the mother and for the child the mother’s proposal provides some reduction of the levels of stress that have attended in the present dynamics. Whilst neither parent nor the ICL agitated any allegations of abuse or family violence within the meaning of those terms in this case, the fact is that the extent of the child’s knowledge and concerns about the parental conflicts, as reflected in her recorded statements, and Ms E’s evidence about the child’s position with respect to these matters gives cause for concern. In my judgment these dynamics will be substantially alleviated on the mother’s proposal.
I am satisfied that the mother would give appropriate consideration to any input of the father in future, if he chooses to make meaningful input in reaching decisions concerning long-term issues.
I am thus satisfied that having regard to the conclusions reached as to the relevant best interests considerations the mother’s proposal involving the child’s relocation to the USA overall best meets the child’s best interests as compared with the father’s proposal.
Undoubtedly, the child has enjoyed attending C School and participating in her extra-curricular activities and she has progressed academically at that school. Her school friends are undoubtedly important to her. However, given that it was the mother who identified C School in the first place and pursued that option, despite initial opposition from the father, there is no reason to suppose that the mother is not well-attuned to identifying a school of equivalent standards in the USA in the area where she and Mr D propose to live.
As referred to by Ms E it is inevitable that a child at middle school level faces change in any event with respect to future education. I am satisfied on Ms E’s description of the child and her presentation as a capable and achieving student that the child more likely than not will adapt academically to a new school and will readily make new friends in the USA as well as maintaining existing friendships. Moreover, I am satisfied that the mother and Mr D are well aware of the aspects which will assist the child in making that change, as identified by Ms E, and will facilitate as best they can be facilitated those aspects of assistance.
The mother’s proposal offers the child the opportunity of remaining in the primary care of the mother who has always been her primary carer supplemented with the benefits of the family unit that the mother and Mr D can provide. Whilst I am conscious that Mr D points to his son U as a positive feature and that this association has a potential benefit for the child, their respective ages and in particular the age of the son probably means that he will be pursuing his own interests more than family life. That is, whilst I do not discount that as a benefit I do not place much store in it given the divergence in ages between the child and Mr D’s son.
I am satisfied that Mr D is committed to the mother and the child and he has demonstrated that commitment for several years now. I am satisfied that Mr D has the sensitivity to address, with the mother, any issues of concern arising in his relationship with the child. Apart from the experience of family life that this option will provide for the child, it is obvious that there are enhanced economic benefits for the family unit as a combined family unit with obvious potential positive benefits of this for the child.
The father is not currently employed but is studying. He historically referred to several changes of employment as the reason he has not maintained his child support obligations. The father presents as something of an unknown in terms of his future financial viability. It is, for example, unknown whether he in fact could make any meaningful contribution to private school fees in future. In short, in comparison to the father’s circumstances the mother and Mr D present as a combined strong economic unit.
I am satisfied that on the mother’s proposals for time and communication, including the extent of the mother’s assumption of costs, the child will maintain a meaningful relationship with the father and likewise will maintain her relationships with each of Ms H and other extended members of the father’s family.
Likewise I am satisfied that the maternal grandparents will continue in their importance to the child and that the nature of the relationship she presently has with them, whilst it will change, will not be qualitatively different.
Whilst the child has historically placed some reliance on sessions she has had with her school counsellor at C School, particularly concerning the parental dispute, I am satisfied on her evidence that the mother is attuned to the child’s needs and that the mother has already considered therapeutic counselling and accessing such services for the child in the USA if needed. I have no doubt that the mother’s demonstrated history in being able to meet the child’s needs extends to accessing for the child appropriate health professionals, if needed, in assisting the child with the adjustments she no doubt will have to face in relocating to the USA.
I am satisfied that on the mother’s proposals as to time and communication the child will retain her links to her community and knowledge of it. Equally, I am more than satisfied that the child has the capacity to develop new friendships in the USA and that there are many positives for her of the cultural experiences she can have living in that country.
I am satisfied that the combined resources of the mother and Mr D; and their commitment to meet the child’s needs; means that it is more likely than not that they are ready, willing and able to support the travel requirements and associated costs for the child for visits to and from Australia.
Orders
As the mother proposes to effect the relocation at the end of Term 2 immediately prior to the June/July school holidays here, that would seem to allow for sufficient time for the child to be settled in the USA prior to the commencement of the academic year there in August.
However, on that scenario it seems that the present orders for time should, in effect, operate until the relocation actually occurs.
On that basis the orders I make as set out at the commencement of these reasons are essentially in the terms proposed by the ICL and by the mother with adaptions or amendments to them to accommodate alternate weekend time (and the forthcoming Easter holiday period) pending the relocation; and to otherwise express the orders as I consider they ought be expressed, particularly regarding parental responsibility. I have also amended the terms of the proposed order for the holding of the child’s passport by the mother to accommodate the child’s travel. I have added an order for liberty to apply in case there be any issue of the practical or mechanical operation of the orders pending the relocation.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 March 2015.
Associate:
Date: 31 March 2015
ANNEXURE “A”
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUTRALIA
AT BRISBANE
No. BRC3863 of 2013
BETWEEN
[Ms Ververs]
(Applicant)
and
[Mr Grant]
(Respondent)
and
Leanne Walsh
(Independent Children's Lawyer)
PROPOSED MINUTES OF ORDERS BY INDEPENDENT CHILDREN'S LAWYER
That all previous orders in this matter are hereby discharged.
That the mother have sole parental responsibility for the long term care, welfare and development of the child, [B] born … 2003.
That in discharging sole parental responsibility, the mother shall:
(a)Advise the father of any prospective decision in relation to the child’s long term care, welfare and development.
(b) Request the father to provide input into the decision to be made.
(c) Consider the father’s input before making any decision.
(d) Thereafter, inform the father of any decision made.
That both parents have the care and responsibility for the day to day care of the child whenever the child is in their care.
That the child live with the mother and the mother be permitted to relocate with [the child] forthwith to the United States of America.
The father shall spend time with the child as agreed between the parties and failing agreement in the following manner:
(a)The father by the 1 January each year shall advise the mother in writing of his intended holidays.
(b)That the father shall spend time with the child for such portion of the United States school holiday summer vacation as he may request so long as such time coincides with his actual holiday time.
(c)That the father be at liberty to spend time with the child in the United States by giving the mother 2 months’ notice of his intention to travel and spend time with the child provided that such time coincide with the child’s school holidays and the father’s holiday time.
(d)That each alternate year commencing 2015, the father shall spend time with the child in Australia during the Christmas/winter school holiday break provided that such time coincide with the child’s school holidays.
(e)That for the purposes of effecting the father spending time with the child in paragraphs 6(b) and (d) the mother shall cause the child to be transported to Australia.
(f)That in relation to the costs of travel, in relation to paragraphs 6(b) and (d) the mother shall bear the costs of travel.
(g)That in relation to the costs of travel in relation to paragraphs 6(c) the father shall bear the costs.
(h)That the father communicate with the child by skype or other electronic means each Sunday 11:00am Queensland Eastern Standard Time (7.00pm Pacific Standard Time).
(i)The father be at liberty to telephone the child at any reasonable time and should the child express a wish to communicate with the father, the mother shall facilitate such communication at all such reasonable times.
In the event that the father is not spending face to face time with the child on any of the father’s birthday, the child’s birthday, Father’s day, Christmas day and Easter Sunday the child shall communicate with the father via skype between 8.00am and 2.00pm Queensland Eastern Standard time.
That the mother communicate with the child be telephone on one occasion per week when the child is in the father’s care and the father provide details of his location to the mother to enable this to occur.
That the parties shall each respectively provide to the other no less than one month’s written notice of an intention to change their residential address and/or their landline telephone number.
Both parents are at liberty to attend the child’s extra-curricular activities and parent teacher nights or any school based event.
Unless specified otherwise in these orders, or unless agreed otherwise between the parties, the father shall collect the child from the Brisbane airport at the commencement of those periods when the child shall be spending time with him and the mother or her nominee shall collect the child from Brisbane airport at the conclusion of those periods when the child shall be spending time with the father.
Both parents are hereby injuncted against denigrating the other or making critical or derogatory remarks about the other, or any partner of the other, in the presence of the child.
That the child shall be known by the name “[B Ververs-Grant]” and all parties shall cause the full hyphenated name to be used in any circumstances where the child’s surname is to be used.
The parties shall each respectively advise the other of any illness or injury suffered by the child whilst in that party’s care.
The parties shall each respectively advise the other of any person or institution providing any medical care, counselling, or the like to the child whilst in that party’s care.
The parties shall each respectively authorise and direct any person providing the kind of care referred to in the order above to the child, to discuss such treatment and to provide any information or documentation that the other party may seek in relation to such treatment. The parties may respectively produce a copy of these orders to any person providing such care as evidence of the others authority and direction in that regard.
Except in a case of an emergency, the parents shall respectively advise the other no less than 14 days prior to any medical, counselling or other therapeutic appointment involving the child, and both parents are at liberty to attend such appointment.
The parties shall each respectively authorise and direct any school or other educational/developmental institution attended by the child from time to time, to discuss the child’s education and to provide any information or documentation that the other party may seek in relation to such treatment. The parties may respectively provide a copy of these orders to any such school or institution as evidence of the others authority and direction in that regard.
That the mother retain custody of the child’s passport and that the mother be at liberty to re-apply for an extension of the passport at her discretion.
Dated: / / 2015
ANNEXURE “B”
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUTRALIA
AT BRISBANE
No. BRC3863 of 2013
BETWEEN
[Ms Ververs –D]
(Applicant)
and
[Mr Grant]
(Respondent)
and
Leanne Walsh
(Independent Children's Lawyer)
PROPOSED MINUTES OF ORDERS BY APPLICANT
That all previous orders in this matter are hereby discharged.
That the mother has sole parental responsibility for the long-term care, welfare and development of the child [B] born … 2003.
That in discharging sole parental responsibility, the mother shall:
(a) Advise the father of any prospective decision in relation to the child’s long term care, welfare and development.
(b) Request the father to provide input into the decision to be made.
(c) Consider the father’s input before making any decision.
(d) Thereafter, inform the father of any decision made.
That both parents have the care and responsibility for the day to day care of the child whenever the child is in their care.
That the child lives with the mother.
That the child spend time with the Father at all times as agreed between the parties in writing and failing agreement at least as follows:
ALTERNATE WEEKENDS NOT INCLUDING SCHOOL HOLIDAYS
(a) Every alternate weekend:
i.For the period from the first week of April 2015, from after school on Friday afternoon until before school on Monday morning. Provided that if the Monday is a public holiday or pupil free day then the child shall spend time with the Father until before school on the Tuesday.
ii.Transfer of the child will be effected by the Father collecting the child from school at the commencement of such periods and dropping the child at school at the conclusion of such periods.
EXTENDED HOLIDAY PERIODS
(b) For one half of the listed private school holiday periods, being the first half of such holidays in even numbered years and the second half of all such holidays in odd numbered years (a "block"), the Father will collect the child from the Mother at the commencement of such periods and the Mother will collect the child from the Father at the conclusion of such block periods.
(c) That alternating weekend visits be suspended during school holiday block periods.
FATHER'S DAY/MOTHER'S DAY
(d) Should Father's Day fall on a weekend when the child would not otherwise be spending time with the Father, the Father shall collect the child from the Mother at 8.00am on that day and the Mother shall collect the child from the Father at 5.00pm on that day, such contact to be in addition to any other contact to be exercised by the Father.
(e) Should Mother's Day fall on a weekend where the child would otherwise be spending time with the Father, the Father is to deliver the child to the Mother at 8.00am on that day, and the Mother is to return the child to the Father at 5.00pm on that day, with no entitlement for the father to receive additional contact in lieu of that day.
BIRTHDAYS
(f) On each of the Father's birthdays and each of the child's birthdays:
i.if any of same fall on a school day, then for a period of three hours from 4.00pm to 7.00pm with the Father to collect at the start and the Mother to collect at the end;
ii.if any of those days on a non-school day when the child would otherwise be spending time with the Father, then from 8.00am to 12.30pm on that day with the Father to collect at the start and the Mother to collect at the end;
(g) If the child's birthday or the Mother's birthday falls on a non-school day when the child would otherwise be spending time with her Father, then the mother may collect the child at 8.00am on that day and the Father may collect the child at 12.30pm on that day;
(h) If the child's birthday or the mother's birthday falls on a school day when the child would otherwise be spending time with her Father, then the Mother may collect the child after school on that day and retain the child with the Father to be provided with a substitute period of contact.
CHRISTMAS DAY AND OTHER PUBLIC HOLIDAYS
(i) On Christmas Day in each year, the parent that the child is not spending time with on that day may collect the child from the other at 11.00am and the parent with whom the child is scheduled to be spending time with on that day shall collect her from the other at 3.30pm.
(j) For the Exhibition public holiday and in each alternate year thereafter.
(k) For the Labour Day public holiday and in each alternate year thereafter.
PROVISION OF MISSED TIME
Should alternate weekend contact time be missed by the father, it be allowed to be made up at a later date day for day.
Missed time does not include extension of travel/recovery time as outlined in Paragraph 29 below.
COMMUNICATION WITH CHILD
The Father may contact the child by telephone on each Tuesday and Thursday nights with the Father to initiate a call to the Mother's household between 6.30pm and 7.00pm on each such occasion. The Mother shall facilitate such contact.
10.During any period of holiday contact the child has with the Father, the Mother shall be entitled to telephone the child in the same manner as set out in Order 6 above and the Father shall facilitate such contact.
11.During any period where the child is residing with a parent, the child may call the other parent outside of the above stated times at their own behest.
12.That any telephone conversations between the child and the parents be allowed to be conducted in private without the parent interfering.
PARENTING RELATED ISSUES
13.The parties shall share equally expenses for the child that relate to her education, extracurricular activities and medical care, unless an alternative agreement is reached in writing.
14.The parties shall each respectively provide to the other no less than one month's written notice of any intention to change their residential address, their landline telephone number, their mobile telephone number or their primary email address.
15.Both parents are at liberty to attend the child's extra-curricular activities and parent teacher nights.
16.Unless specified otherwise in these orders, or unless agreed otherwise between the parties, the Father shall collect the child from the Mother's residence at the commencement of those periods when the child will be spending time with him and the Mother shall collect the child from the Father's residence at the conclusion of those periods when the child will be spending time with the Father, except where that period commences or concludes at times when the child is attending school in which case relevant the party shall collect the child from or/and deliver the child to her school.
17.Both parents are hereby injuncted against denigrating the other or making critical or derogatory remarks about the other, or any partner of the other, in the presence of the child.
18.The parents shall each respectively remove the child immediately from the presence any person who makes the kind of comments referred to in Order 17 above.
19.That the child shall be known by the name "[B Ververs-Grant]" and all parties shall cause the full hyphenated name to be used in any circumstances where the child's surname is to be used.
20.The parties shall each respectively advise the other of any illness or injury suffered by the child whilst in that party's care.
21.The parties shall each respectively advise the other of any person or institution providing any medical care, counselling or the like to the child whilst in that party's care.
22.The parties shall each respectively authorise and direct any person providing the kind of care referred to in Order 21 above to the child, to discuss such treatment and to provide any information or documentation that the other party may seek in relation to such treatment. The parties may each respectively produce a copy of these orders to any person providing such care as evidence of the others authority and direction in that regard.
23.Except in the case of an emergency, the parties shall each respectively advise the other no less than fourteen days prior to any medical, counselling or other therapeutic appointment involving the child, and both parents are at liberty to attend such an appointment.
24.The parties shall each respectively authorise and direct any school or other educational/developmental institution attended by the child from time to time, to discuss the child's education and to provide any information or documentation that the other party may seek in relation to such treatment. The parties may each respectively produce a copy of these orders to any such school or institution as evidence of the others authority and direction in that regard.
25.The parties shall communicate with each other via email. The parties shall limit such communication to information which is relevant to the child's welfare and development.
26.Should either party not be able to collect the child at the time or place appointed in these orders than that party shall notify the other party as soon as practicable.
TRAVEL
27.That the child's passport be kept with the mother.
28.That each party be permitted to take the child out of the jurisdiction of the Commonwealth of Australia to United Nations Hague Protection Convention signatory countries, provided they provide the other party with:
(a)30 days notice in writing of the proposed travel arrangements;
(b)a written itinerary for travel;
(c)a copy of the return ticket to Australia for the child and the travelling parent;
(d)proof of appropriate travel health insurance for the child and the travelling parent.
29.That should either party travel with the child during their allotted block period, an extra day either side of the block period can be taken for travel time or recovery time for the child.
30.Should the Father not be able to take holiday time in their allotted block period, the Father will give the allotted time to the Mother to travel with the child to the United States of America.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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