Webster and Downer and Anor

FAMILY COURT OF AUSTRALIA

WEBSTER & DOWNER AND ANOR

[2016] FamCA 822

FAMILY LAW – CHILDREN – Final parenting orders –– where applicant and parents cannot agree on circumstances of the child communicating and spending time with the applicant in Australia and the USA – after mother relocates with six year old child to the USA where the father resides

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth)

Donnell & Dovey [2010] FamCAFC 15
Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153

APPLICANT:

Mr Webster

FIRST RESPONDENT:

Ms Downer

SECOND RESPONDENT:

Mr Ryan

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

10936

2015

DATE DELIVERED:

23 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

15 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Natalie Vogel

THE APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mr Martin Bartfeld QC

SOLICITOR FOR THE FIRST RESPONDENT:

Carew Counsel

COUNSEL FOR THE SECOND RESPONDENT:

Mr Robin Smith

SOLICITOR FOR THE SECOND RESPONDENT:

Lander & Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Peter O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the child B born … 2009 (“the child”) spend time with the applicant as follows:
(a)       if the child travels to Melbourne temporarily for a holiday, on one occasion in each month that the child spends in Australia for a period of six hours during the day, with either of the maternal grandparents in substantial attendance for the first hour of contact. The time is to commence at such time or place as agreed between the parents and the applicant;
(b)       in default of agreement between the parties, changeover in Melbourne is to take place at McDonalds in Suburb C;
(c)       if the applicant travels to the United States of America, on one occasion in each month of any holiday period of the applicant, for a period of six hours during the day, with the second respondent father or either of the paternal uncles to be in substantial attendance for the first hour of contact. The time is to commence at such time or place as agreed between the parents and the applicant.
That the child communicate with the applicant via Skype, FaceTime or other electronic means on four occasions annually, being one occasion on the child’s birthday, one occasion during the summer school holidays in the United States of America, one occasion during Easter holidays and one occasion during Christmas holidays, and that the first respondent mother place the call to a number, Skype username or other equivalent video call contact identifier to be provided by the applicant. The timing of the communication is to be by agreement between the parents and the applicant and failing agreement at 6:30pm City D time.
That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10936 of 2015

Mr Webster

Applicant

And

Ms Downer

First Respondent

And

Mr Ryan

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The applicant seeks a parenting order for the child, aged 6, to communicate and spend time with him in Australia and in City D. The applicant in previous proceedings was referred to as the child’s “step-father” but he has not adopted the child.
The first respondent mother is relocating with the child to City D to take up an offer of employment with a previous employer. The mother is an Australian citizen and the child was born in Australia. The child is the child of the mother’s previous relationship. The second respondent father of the child is an American citizen and lives and works in City D.
Final parenting orders were made (with the exception of the spend time arrangements that are the subject of this decision) by consent on the first day of trial (15 August 2016) to facilitate the mother’s relocation with the child to the United States of America on 22 August 2016.
B was aged about two years when the mother began living with the applicant. The applicant lived with the mother and shared the care of the child for approximately three years. The applicant was married to the child’s mother for a period of approximately 12 months when they separated, although the precise length of time is disputed. He has not spent time with the child since September 2015.
The father has re-partnered and has an adult child from a previous relationship. The mother proposes to live with the child in close proximity to the father.
The interests of the child were represented by an Independent Children’s Lawyer.
There is a background of litigation in earlier proceedings between the parties including the Independent Children’s Lawyer. The Independent Children’s Lawyer was appointed by the Senior Registrar in the course of making interim orders on 19 April 2016. The litigation was initiated by the applicant on 23 November 2015 seeking final and interim orders. This litigation concerned the living arrangements for the child and whether the child should spend any time with the applicant. Interim orders were made by the Senior Registrar for the child to spend time with the applicant. These orders were stayed pending a review of the interim orders sought by the mother. The proceedings to review the decision of the Senior Registrar were adjourned by Macmillan J when the mother made an urgent application to relocate with the child to the United States of America.
A four day trial concerning questions of parental responsibility for the child, whether the child should relocate and the spend time arrangements for the child was listed before me, along with the balance of the applications which had been before Macmillan J.
The broader issues which included the relocation of the child to the United States of America were resolved by consent of the parties and the Independent Children’s Lawyer on the first day of trial.
As a matter of expediency, the parties and the Independent Children’s Lawyer proposed that the outstanding issue in dispute should be determined after hearing submissions from the parties and the Independent Children’s Lawyer. Accordingly neither the Independent Children’s Lawyer nor the parties sought to cross-examine any of the witnesses whom they had initially sought to rely upon in the trial.
The parties and the Independent Children’s Lawyer agreed that the extant applications should be dismissed on the delivery of judgment concerning the spend time arrangements for the child.

THE PROPOSALS

The parents in their respective Case Outlines had sought that the child spend no time with the applicant but after the issue of the relocation was resolved between the parties, the mother and father made the concession that the child should spend some time with the applicant.
The parents proposed jointly that the child spend time with the applicant:
·In the event the child travels to Australia temporarily, for one occasion during such travel, at such a time and place agreed between the mother and/or father and the applicant, with either of the maternal grandparents in substantial attendance;
·In the event the applicant travels to the United States of America, for one occasion during such travel, at such a time and place agreed between the mother and/or father and the applicant, with the father or either of the paternal uncles to be in substantial attendance;
·As otherwise agreed between the mother and father and applicant in writing.
They further proposed that:
·The child communicate with the applicant via Skype, FaceTime or other electronic means on at least four occasions each year at a time nominated by the mother, with the applicant to initiate the call and the mother and the father to facilitate same for a period of no more than 30 minutes;
·In the event the mother and the child are unable to relocate to the United States and/or return to Australia on a permanent basis there be liberty to apply.
The applicant questioned the mother’s motives in proposing to relocate with the child but ultimately, on the first day of the trial, did not oppose the relocation. This was in the context of having received the latest report from the family consultant the afternoon before the trial.
The applicant proposed that:
·the child spend time with the applicant:
·monthly:
(i)in the event that the child is outside Australia, by Skype/FaceTime for half an hour at 6:30 pm in the time zone where the child is located; or
(ii)when the child is in Australia, from 3:30 pm on Friday until 9 am on Monday commencing 19 August 2016, with changeover to occur at the child’s school (if he attends school in Australia) or at McDonald’s Suburb C.
·to celebrate the child’s birthday/Christmas:
(i)in the event the child is outside Australia on those days, by Skype/FaceTime for half an hour at 6:30 pm in the time zone where the child is located; or
(ii)when the child is in Australia, from 3:30 pm to 6:30 pm on those days with same changeover as above.
The Independent Children’s Lawyer proposed the following arrangements:
·For the duration of the period or periods that the child stays or resides in the United States of America, the mother shall ensure that the child communicates with the applicant by Skype/FaceTime for 30 minutes on the first Saturday of each month (at a time convenient to both parents) with the mother to place the call to a number to be provided to her by the applicant;
·If the applicant travels to the United States of America, the mother shall ensure that the child spends at least six hours of unsupervised face to face time with the applicant at some point during each trip;
·If the child is relocated back to Melbourne in 2017, the applicant shall spend time with the child on the first Saturday of each month from 10 am to 4 pm with the applicant having liberty to apply in relation to the extension of such time.

Background

The mother is aged 38 and was employed as a consultant in Melbourne. After the litigation was initiated by the applicant in this Court, the mother was offered a job in the United States. The mother’s employer required her to start work as soon as possible and the school year in the USA was about to commence on 1 September 2016.
The father is a 53 year old public servant living in the US. He is unable to travel, having recently been involved in a serious bicycle accident, and participated in the proceeding via video link.
The applicant is a 47 year old self-employed tradesman.
B was conceived in the US where the mother resided between 2003 and 2010. He was born in Australia in 2009 but returned to the US with his mother when he was six weeks old. The mother and the child lived there for a further eight months before returning to Melbourne as a result of the mother’s health complications. The mother and the father facilitated visits between the US and Melbourne.
The applicant and the mother lived together with her sister and her partner and children for the first two years of their relationship. The child was turning three years of age in the December of the year that the parties began living together. There is a disagreement of a few months about when they began living together but it was in September 2012 on the applicant’s case and November 2012 on the mother’s case.
The applicant and the mother lived in their own home with the child for about 12 months. The applicant and the mother married in 2014 and separated under the same roof in June 2015 on the mother’s case. It is not in dispute that the mother and the child left the matrimonial home in September 2015. The applicant has not spent any time with the child since that separation apart from time spent with the child on 9 March 2016 while observed by the family report writer in the course of preparing the first family report.
On 2 May 2016, a 12 month intervention order was made against the applicant naming the mother and child as protected family members. The applicant was present for the hearing and consented to the order without admission of the allegations in the complaint.
The consent orders made on the first day of the trial provide for the parents to have equal shared parental responsibility for the child and for the child to live with the mother and the father as agreed between them. The orders also provide for the mother to be permitted to relocate the child’s residence to within commutable distance of City D or such other place within the United States of America as is agreed between the mother and the father. By consent the orders also provide for the applicant to be at liberty to send gifts and cards to the child on special occasions and to send emails to the child at reasonable times. In the event the mother and the child are unable to relocate and/or they return to Australia on a permanent basis, the mother is obliged to notify the applicant of her inability to relocate and/or her permanent return to Australia. The orders also provide for the mother and father to do all things and sign all documents necessary to register the orders in an appropriate jurisdiction in the USA at the applicant’s expense.
The family consultant, Ms E, in her latest report recommended a facilitated farewell meeting for the child with the applicant to support “the positive memories of their relationship”. The parties agreed to this farewell meeting and incorporated the proposal into the final consent orders made 15 August 2016, with the meeting to be facilitated by the family consultant.

The Evidence

The documents relied upon and filed by each party in accordance with the Case Outlines are listed in Annexure A. The Independent Children’s Lawyer did not file a Case Outline because the latest report of the family consultant was not available until the Sunday afternoon before the trial. Counsel for the Independent Children’s Lawyer relied upon the reports of the family consultant and the Psychiatric report by Dr F dated 25 February 2016.
As outlined earlier, none of the evidence was tested in cross-examination.

Standard and onus of proof

When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
·the nature of the cause of action or defence; and
·the nature of the subject matter of the proceeding; and
·the gravity of the matters alleged.[1]
[1] Evidence Act 1995 (Cth), s 140.

Evidence of the expert witnesses

The family consultant Ms E prepared a family report dated 16 April 2016, a response to the mother’s “Questions to single expert witness” dated 7 June 2016 and an updated family report dated 14 August 2016.
Psychiatrist Dr F prepared a psychiatric report after assessing the applicant on 22 February 2016 and reviewing the file material including subpoenaed records.
The family consultant and Dr F were both of the opinion that the applicant was not a risk to the child.
As a result of recommendations made by the family consultant in her first report, the child was referred to clinical psychologist Ms G for a comprehensive psychoeducational assessment. This was in view of concerns about attentional, processing and social integration skills raising the question of whether the child may meet criteria for a developmental condition such as autism.
Ms G’s opinion was summarised in her report dated 21 June 2016 as:
In terms of social-emotional functioning, it is noted that [the child] appeared generally happy within the well-structured classroom setting, although it is apparent that he has experienced a number of significant family adjustment issues in relation to parental conflict and changes in the family configurations and living circumstances. Nevertheless it is apparent that since an early pre-school stage, [the child] has displayed a range of social- emotional challenges related to social communication and social interaction, together with restricted and repetitive patterns of behaviour, which collectively are consistent with threshold for a mild Autism Spectrum Disorder. Autism is a neuro-developmental disorder with atypical communication and behaviours, such as demonstrated by [the child] and evident historically. It is also clear that a child with an ASD will respond best to a predictable routine, consistent caregivers, an organised environment, and clear consistent messages presented warmly and calmly.
Ms G made a number of recommendations for strategies to be incorporated into an individualised learning plan for the child. She referred to the child requiring ongoing support for “slow processing speed, auditory attentional challenges and autism-related behaviours” which underlie his presentation of “significant attentional and impulse control difficulties”.
Ms G was not involved when the family consultant completed her first report. Accordingly the opinion of the family consultant in her latest report was informed by Ms G’s most recent assessment. The family consultant was also apprised of the post separation conduct of the applicant which had been outlined in the mother’s affidavit material.
The latest report of the family consultant addressed the change in circumstances for the child under the mother’s proposal for relocation. The family consultant supported the mother’s proposal to relocate with the child to City D. In summary the recommendations of the family consultant in her latest report at paragraphs 103 to 107 were that the child lives with his mother, the mother be permitted to relocate to City D, the child spends time with his father as agreed between the parents, the child has contact with the applicant by Skype/FaceTime at least four times each year, that the applicant sends birthday cards and correspondence at other times to the child and that if the child is in Australia or the applicant is in America, they spend some “day time” with each other.
The family consultant, in her latest report, described the child as having a “secure attachment to both parents and a strong and positive bond” with the applicant. There was no dispute about the description of the relationship between the child and the parties outlined by the family consultant.
At paragraph 91 of her latest report the family consultant said that in the event of the mother relocating with the child to the USA, the parents should facilitate the child’s relationship with the applicant “with ongoing but not necessarily frequent contact.” At paragraphs 92 to 96 she said:
Contact by Skype/FaceTime would only need to be around four times each year for the child to retain the positive memories of the relationship. [The child] knows that he was loved and he contributed to [the applicant’s] life as well, but the child’s adjustment to the new reality will be supported by less frequent contact.
If the child is in Australia or [the applicant] is [sic]America, then a visit during the daytime would be appropriate.
If relocation is not permitted, in order to assist the child’s development, particularly in light of his developmental assessment, time with [the applicant] should not promote anxiety for the child.
The alternate weekends that were recommended in the first family report are likely to create confusion for the child, whose development has since been assessed as mixed. While a significant emotional figure for the child, [the applicant’s] relationship with him, should be considered more as that of a kind uncle, and [the mother and the father’s] roles as primary parents, should be reinforced by the child spending much more substantial time in their care.
Should relocation not proceed, the child could spend one weekend in a month with [the applicant] and other times that could be flexibly arranged in which they engage in a shared activity.

In her evaluation, the family consultant was of the view that the father presented as a “considerably competent parent” and that the child’s development would be facilitated by his direct and ongoing involvement in caregiving. She described both parents as being “competent parents, both individually and in the parenting system that they have developed and maintained for the child’s care” and was of the view that they had both demonstrated an ability to provide for the child’s welfare, safety and development. She described the parents as demonstrating appropriate responsiveness to addressing the child’s “now assessed special needs.” She also noted that the parents have demonstrated considerable fortitude in developing and maintaining the caregiving system for the child “despite the challenges of geographic distance”, which was a particularly positive factor because the child has been supported in building a secure attachment relationship with his father.
The family consultant’s evaluation of the applicant was that he presented as psychologically stable and competent as a caregiver to the child. She noted that he presented as realistic about the extent of his role in the child’s development. She recommended that the applicant address his emotional well-being with ongoing counselling in the event of the child relocating.

Evidence of Dr F

Dr F reported:
[The applicant] acknowledges episodes of mild situational depression in the past, particularly when he reportedly discovered that [the mother] was having an affair in mid 2015. In the context of his grief at that time, [the applicant] experienced and expressed some suicidal ideation, but he reportedly quickly improved and did not require lengthy psychiatric or psychological treatments.
Upon the history available, there is no evidence of major past psychiatric history, family psychiatric history, alcohol or substance abuse, unresolved medical illness or personality disorder.
Dr F noted that there were differing versions of the events before and since the applicant’s estrangement from the mother but that the applicant was at the time of the preparation of the report “adamant that [the mother] has lied about a number of facts and issues”.
Dr F stated that “leaving aside statements by [the mother]”, he was not in receipt of any other external information to cause him to doubt the applicant’s psychiatric wellness at the time of the preparation of the report. Dr F reported that the applicant presented at the examination as “a pleasant and plausible individual who reported that he has appropriately sought counselling in the past when necessary” and who “described caring, insightful and committed attitudes with regard to parenting responsibilities and arrangements”. Dr F stated that the applicant “did not demonstrate any major psychiatric or cognitive deficits” and that “in the absence of any other information”, Dr F was of the opinion that the applicant “does not suffer from an ongoing psychiatric disorder”. Dr F went on to say of the applicant’s prognosis that, “upon the history available”, he was of the opinion that the applicant was “not at any particular risk of future behavioural or psychiatric issues that would impact negatively upon his parenting, as a result of any psychiatric disorder” and “[n]o ongoing psychiatric or psychological treatments appear to be required”.
Dr F, in his conclusions, noted that he had not seen the child and was unable to fully comment upon the dynamics of the relationship between the child and the applicant. He said that notwithstanding this fact, “if one takes at face value” the applicant’s version of events, “there would appear to be insufficient evidence to suggest that ongoing care by him of [B] is contraindicated for psychiatric reasons. In [the applicant’s] version, psychiatric disorder would not appear to be a significant factor with regard to his ability to provide a reasonable level of positive parenting and have [B] live with him or spend time with him unsupervised.”

The evidence of the mother

The mother deposed to “frightening, stalking and threatening” behaviours towards herself and others on the part of the applicant post separation.
In her Case Outline, the mother referred to the following alleged incidents post separation which caused her to apply for an intervention order. She asserted that the applicant:
·tracked/stalked her via her iPhone;
·threatened her that she would lose her son, her family and her job;
·was fixated on the idea that she had an affair with a work colleague, a fixation that manifested in behaviour including telephoning her work, contacting members of her family and threatening the alleged lover;
·tied a noose to the balustrade in their home and threatened to end his life;
·stabbed a kitchen knife through a heart ornament on the wall of their bedroom; and
·tattooed the child’s name on his chest (post separation).
The mother deposed to this conduct in her affidavit material.
At paragraphs 50 and 52 to 57 of her affidavit filed 19 January 2016 she deposed that the applicant sent her an email on 16 September 2015 which he subsequently accessed and deleted from her email account. She deposed that the email outlined two options from which she was required to choose. The first option was that she move back in with him and that they get back together again and she agree to counselling for a minimum of 12 months; that she or her colleague resign from work immediately; that she never see the colleague again; and that she change the child’s surname to the surname of the applicant or a combined surname of the applicant and the father and “fil[e] papers for [the applicant] to have parental rights for [the child]”.
She deposed that the email stated that if she did not agree to all of the conditions for option one that option two was that the applicant would contact her employer, family and friends and forward “evidence” of an affair and the applicant would “get custody” of the child.
The mother deposed that the applicant went on to say that if she did not accept the conditions of option one that she would stand to lose her son, her family and her job.
She deposed that the applicant texted her demanding that she choose an option and that when she did not respond he wrote “I’m going with Option 2. Happy Life Bitch”.

The evidence of the applicant

The applicant deposed to having had a “close and loving” relationship with the child during the time that the child lived with him, and deposed that the child called him “dad” and the applicant treated the child as his own son. The close and loving relationship is not in dispute.
The applicant in his affidavit filed 4 February 2016 denies the content of the email deposed to by the mother concerning the options described above.
However in that same affidavit at paragraph 69 he agreed with paragraph 57 of the mother’s affidavit filed 19 January 2016.
Paragraph 57 of the mother’s affidavit states:
When I did not respond he wrote “I’m going with Option 2. Happy Life Bitch”
At paragraph 60 of the applicant’s 4 February 2016 affidavit, the applicant agrees with the mother’s affidavit filed 19 January 2016 at paragraph 47.
At paragraph 47 of that affidavit the mother states:
On 26 August 2015, I received a text message from [the applicant] in which he thanked me for helping him and stated the outcome could have been different if I had not been there. He also sent a text message to my sister about the incident and said that he “came close to doing something silly”. Annexed and marked with the letters “KD-4” (page 4) is a true copy of that text message.
The applicant agreed with the mother’s affidavit evidence that he tied a noose made from his neck ties to the balustrades at home and sent her a text message that he was very depressed and wanted to end his life. This is set out in the applicant’s affidavit filed 4 February 2016 at paragraphs 57 and 58, where he agrees to paragraphs 44 and 45 of the mother’s affidavit filed 19 January 2016. Paragraph 44 of the mother’s affidavit states:
On 25 August 2015, [the applicant] sent me a text message that he is very depressed and wanted to end his life. Annexed and marked with the letters “KD-2” (page 2) is a true copy of that text message.
Paragraph 45 of the mother’s affidavit, with which the applicant agreed, states:
I came to the house and he had tied a noose to the balustrades with his neck ties. I called the doctor. I took a photograph of that noose. Annexed and marked with the letters “KD-3” (page 3) is a true copy of that photograph.
The applicant deposed that he completed a Parenting After Separation course on 27 November 2016.
Annexure Q of the affidavit of the applicant filed 4 February 2016 is a photo of the three heart ornaments referred to by the mother with a knife in one of the hearts. The text message from the mother reads “I see you have removed all the emails from my computer!” The text message response from the applicant with the photograph reads “How I feel, thanks”.

The evidence of the father

The evidence of the father essentially addressed the relocation issues, which were resolved on the day of the final hearing. In his Response, the father opposed the child spending any time with the applicant because he considered that it would prolong the acrimony between the mother and the applicant and place the child in the centre of an ongoing conflict. The father expressed serious concerns regarding the true intentions of the applicant in seeking to prolong his relationship with the child. His affidavit material was prepared on the basis that the applicant should not spend any time with the child. However, as previously outlined, on the day of trial this attitude changed in circumstances where the applicant did not oppose the relocation.
The father expressed concern about the applicant abandoning his relationship with the child in the event that he re-partners or fathers his own children in the future. The father also expressed concerns about negative comments made by the applicant in text messages which the applicant annexed to his affidavit affirmed 4 February 2016 (Annexure B) which contradict the attitude of “I’ve never had an issue with [the father]” which the applicant reported to the family consultant during interview.
It is unnecessary to outline the father’s evidence in support of the relocation. I note that the father did not witness the post separation conduct of the applicant as he was in the USA at the time. The untested evidence of the father in his affidavit material at paragraph 21 of his affidavit filed 25 February 2016 was that the applicant telephoned him in September 2015, informing him that the mother was having an affair and that they were separating. He deposed that the applicant told him that the mother’s family were disgusted with her behaviour and were “turning on her” and because of this the applicant felt it appropriate to apply for “custody” of the child. The father deposed that the applicant asked him if he would be interested in working this out with him. The father deposed that he was very suspicious of what the applicant was telling him and that when he telephoned the maternal grandmother she informed him that the mother and the applicant had been separated for a few months.

THE SUBMISSIONS

The submissions on behalf of the applicant focused heavily upon his positive relationship with the child outlined by the family consultant including the views of the child. The mother acknowledges in her Case Outline that the applicant and the child enjoyed a good relationship during the period that she lived with the applicant.
Counsel for the applicant emphasised paragraph 96 of the latest report of the family consultant, which recommended that in the event that the relocation did not proceed the child spend one weekend in a month with the applicant and also spend time with the applicant other times that could be flexibly arranged and in which they would engage in a shared activity.
The submissions of counsel for the mother supported by the father concentrated on the post separation conduct of the applicant as the basis for the mother’s concern that the applicant’s application was made for the ulterior purpose of punishing the mother rather than to pursue the applicant’s relationship with the child.
The father was also concerned about the child being exposed to the negative attitude of the applicant towards the mother because of the applicant’s post separation conduct.
Counsel for the mother highlighted the conduct of the applicant outlined in the mother’s affidavit filed 18 January 2016 at paragraphs 52 to 57. He emphasised that the conduct outlined by the mother in her affidavit was conceded by the applicant at paragraphs 68 and 69 of his affidavit filed 4 February 2016.
Counsel for the mother also emphasised the fact that an intervention order had been made which was current until 2017.
The submissions made on behalf of both parents emphasised that their joint proposal was in accordance with the recommendations of the family consultant.
Counsel for the Independent Children’s Lawyer supported the submissions for applicant and emphasised the additional considerations regarding the views of the child wanting to spend time with the applicant and the significant caregiving role of the applicant for the child from the age of two years. He emphasised the report of Ms G which referred to the child benefiting from consistent caregivers and suggested that this supported continued contact with the applicant.

The Relevant Law

These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”). There was no dispute before me that the applicant (who had not adopted the child) has standing to make the application under s 65C(c) of the Act as a person concerned with the care, welfare or development of the child.
The definition of “parent” when used in Part VII of the Act means an adoptive parent of the child and the definition of “adopted” in relation to a child is that they are adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.[2] It is not suggested that the applicant is a parent of the child under the Act.
[2] Section 4(1) of the Act.
Under s 64C of the Act parenting orders may be made in favour of parents or other persons.
Consent to jurisdiction does not bind the court.
In Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 at paragraphs 8 to 12, Ryan and Austin JJ said of the issue of standing to bring an application for a parenting order:
Standing to bring an application for a parenting order is governed by s 65C of the Act. Section 65C provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
Section 65C as it operated when his Honour determined the appellants’ lacked standing is identical to the provision as now formulated and as set out above.
The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
The Full Court considered this issue in Aldridge v Keaton (2010) 42 Fam LR 369 and described the process thus:
28. Senior counsel for the applicant agreed in circumstances such as the instant case, where a person is not a parent or grandparent of a child, there is a threshold question to be determined as to whether or not an applicant is a “person concerned with the care, welfare or development of a child”. However, he submitted once that threshold is crossed, the only test in respect of any applicant is whether or not a parenting order will be in the best interests of a child. For reasons we will now explain, we agree with that submission.
We agree.
There is no dispute that the applicant was married to the mother, lived with the child and shared in the care of the child for a period of approximately 3 years. There is no dispute that the child had a close relationship with the applicant and regarded him as his carer when the child lived with the applicant.
In these circumstances I am satisfied that on the facts of this case that the applicant is a person concerned with the care, welfare or development of the child.
In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
The Full Court (Warnick,Thackray & O’Ryan JJ) in Donnell & Dovey [2010] FamCAFC 15 considered the application of the Act in disputes involving a parent and a non-parent. At paragraph 80 the Full Court in reference to s 60CA of the Act said:
It will be noted that there is no reference in this provision to any distinction between parents and non-parents. The child’s best interests remain the paramount consideration regardless of the biological (or other) connection of the child to the parties to the proceedings.

Determining the child’s best interests

Section 60CC of the Act sets out “primary” and “additional” considerations to which the Court must have regard in determining what orders are in the child’s best interests.
The Full Court in Donnell & Dovey (supra) considered the practical implications of applying s 60CC in cases involving parents and non-parents and said at paragraphs 101 to 104:
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. This is so because the paragraph refers only to “parents”, and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. …
On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead to nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.
This is why the legislature has included a “catch-all” provision, s 60CC(3)(m), which ensures the court can take into account every factor that may assist in reaching the right destination. It is important to keep in mind, however, that s 60CC(3)(m) is contained within the set of factors deemed to be “additional considerations”. Therefore, any matter not captured by s 60CC(2) cannot be a “primary consideration”, regardless of how important it may be in determining the outcome.

The primary considerations

There is no issue in this case that the child will benefit from having a meaningful relationship with both of the parents. He has a meaningful relationship with both parents on the evidence of the family consultant. Upon relocation that meaningful relationship will continue. As outlined earlier, s 60CC(2)(a) has no application to a person who is not a “parent”.
The primary consideration under s 60CC(2)(b) mandates that in determining what is in the best interests of the child I must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Under s 60CC(2A) I must give greater weight to that consideration than the other primary consideration, which is the benefit to the child of having a meaningful relationship with both of the child’s parents.
There were no submissions from the parents addressing unacceptable risk but there were submissions from the parents that the behaviour of the applicant at separation caused the mother to successfully obtain an intervention order naming her and the child as protected persons. It was submitted that the relationship between the mother and the applicant is one of mistrust and that the mother holds real and genuine concerns about the child’s physical, emotional and psychological well-being in the care of the applicant. It was essentially asserted that the mother’s fears associated with the applicant’s possible motivations for seeking equal shared parental responsibility for and equal time with the child have caused her increasing anxiety. It was submitted that the applicant posed a risk to the child because of his negative attitude towards the mother. The parents relied on the fact that an intervention order was made.
I am satisfied on all the evidence, but in particular the evidence of Dr F and the family consultant, that, should the applicant spend time and communicate with the child in accordance with the proposals of the parents but with the substantial attendance of the relatives referred to above for one hour at the beginning of the spend time period, there is no unacceptable risk to the child of the applicant harming the child or exposing him to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There have been no findings made about family violence and the applicant consented to the intervention order without admission of the allegations in the complaint.

The additional considerations

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Although the child is aged only six, his views are clear and the family consultant reported in both reports that he missed the applicant and wanted to see him. He remembered “doing fun things” with the applicant. This is not disputed by the parents. I accept the evidence of the family consultant that the child continues to express grief about the absence of the applicant. I accept on all the evidence that the child wishes to spend more time with the applicant.
B has only very recently been assessed as demonstrating mild symptoms of an Autism Spectrum Disorder which have not yet been addressed through parenting or educational strategies. The Independent Children’s Lawyer relied upon Ms G’s reference to the benefit to the child of consistent caregivers. However, I regard the parents, and in particular the mother, as the consistent caregivers in the circumstances of the relocation.
By agreement with the Independent Children’s Lawyer the mother recently told the child that there is a possibility that he and the mother may be moving to City D but it is not certain. The family consultant reported that “B said that his recent visit to the United States was ‘fun’ and that he did ‘fun things’ with his father. He said that he would like to live there, so ‘Dad and I can do fun things.’”
I have placed some weight on this additional consideration but note that the child is only six years of age and enjoys spending time with all of the significant adults in his life including the applicant.

Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)

Section 60CC(3)(b) of the Act requires consideration of the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child). This includes the child’s relationship with the applicant. There is no issue that the relationship between the applicant and the child was very good when the applicant and the mother were living together. It cannot be disputed on the evidence of the family consultant, acknowledged by the parents, that the child has articulated that he misses the applicant and wants to spend more time with him. The meeting described by the family consultant in her first report between the child and the applicant in circumstances where the child had not seen the applicant for six months was a happy one. I accept the opinion of the family consultant in her first report, where she concluded that the applicant demonstrates competent parenting and that he was sensitive to the needs of the child especially given the extended period of separation. I accept the evidence of the family consultant that the child demonstrated a strong and positive bond with the applicant and that “he clearly experiences him as emotionally reliable, stimulating and supportive”. I accept the opinion of the family consultant that the child presents as having a secure attachment relationship with the applicant. I accept the evidence of the family consultant about the child’s “poignant statements” about missing the applicant and the delight he demonstrated at their reunion being indicative of “the extent of the loss experienced by the child”.
I accept the evidence of the family consultant that the parents and the applicant “present overall as mature individuals who have managed to build and maintain facilitative relationships for the child” and that with the passage of time the adults should be able to re-establish “civil, respectful and mutually supportive relationships, so that the child can benefit from what is considerably facilitative potential for his development”.
I accept the evidence of the family consultant about the child’s relationship with each of the parents. I accept her conclusion confirmed in her latest report that the child has a secure attachment to both parents and a strong and positive bond with the applicant. I accept her opinion that the child is also positively connected to both sides of the extended families of the parents, particularly in Melbourne.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

The applicant asserts that the father did not communicate or spend significant time with the child and that he was not involved in making decisions about major long-term issues. This is disputed by both parents. The mother has been primarily involved in making decisions about major long-term issues in relation to the child spending time and communicating with him. Nevertheless, the evidence of the family consultant about the nature of the relationship between the parents supports the evidence of both parents about the extent of the father’s involvement with the child.

Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

The applicant asserts in his Case Outline and deposed in his affidavit material that the father did not provide the mother with financial support for the child during the time that the child lived with the applicant and the mother.
The mother indicated in her affidavit filed 19 January 2016 that the father has previously assisted with the child’s expenses although he was limited by his “work situation” and deposed to the father providing payment in 2015 for child support for which he was liable. The mother deposed that the father has sent the child birthday and Christmas gifts and “sporadic parcels”.
The parties made no submissions addressed to this consideration and I am not in a position to make any finding on this.

Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; and

Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Relevantly, the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other person with whom the child has been living is an additional consideration under s 60CC(3)(d). Under s 60CC(3)(g) the maturity, lifestyle and characteristics of the child that the court thinks are relevant is an additional consideration and intersects here with s 60CC(3)(d).
B is familiar with both City D, having visited on numerous occasions, and Melbourne, where he has lived most of his life.
B is only six years of age and will have to cope with settling into a new life in the USA, establishing new friendships at a new school focusing on the particular supports that he needs to address his developmental issues and dealing with the emotions of leaving the routine of his school, his friends, the applicant and the child’s maternal extended family in Australia. He will also be dealing with the adjustment of having more frequent contact with his father, his half sister and his extended paternal family in the USA.
In considering the child’s likely adjustment to relocation, his development, individual resources and temperament, including his physical, cognitive and emotional capacities, the family consultant reported that the child will undoubtedly benefit from the increased involvement of the father because he will have two parents who can support his development and support each other. The family consultant was of the opinion that given their capacity, the parents would also be able to support the child’s “grief in response to leaving family and friends, as well as school and other networks”. However she stated that: “it will be crucial that they establish a stable and reliable routine of caregiving relatively quickly”.
Taking into account the recommendations of the family consultant and the recommendations of Ms G together with the circumstances of the relocation, I am satisfied that it is appropriate for either of the maternal grandparents to be in substantial attendance for the first hour of any time that the child spends with the applicant in Melbourne. Likewise I am satisfied that it is in the best interests of the child for the father or either of the maternal uncles to be present in the first hour of any time spent by the child with the applicant in the USA. This is because I place some weight on the opinion of Ms G that the child will respond best to a predictable routine and consistent caregivers. The relocation will disrupt his routine and some transition involving a familiar family member will assist in the changeover when the child spends time with the applicant and will ensure that any anxiety on the part of the parents is not transferred to the child before the changeover occurs.
It is clearly in the best interests of the child that the recommendation of the family consultant about the child’s communication with the applicant is adopted. This is, that the child communicate with the applicant on at least four occasions annually.

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The additional consideration under s 60CC(3)(e) does not apply to non-parents and is not relevant as between the parents, who are in agreement in this matter. Implicit in the parents’ joint proposal is that the child will be returning to Melbourne with the mother for holidays. The applicant in his Case Outline stated that there are no practical difficulties concerning the child spending time with him. This is a factor which I have considered under s 60CC(3)(m) as a fact or circumstance that the court thinks is relevant.

Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

Concerning the capacity of the parents and the applicant to provide for the needs of the child, including emotional and intellectual needs under s 60CC(3)(f) of the Act, the family consultant at paragraph 71 described the mother as being “realistic about the likely social and emotional adjustments required of both herself and the child. It is notable she did not raise the possibility of relocation with the child, until it was recommended by professionals [purportedly the Independent Children’s Lawyer]”. There was no issue that there is a strong bond between the mother and the child. I accept the evidence of the family consultant that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs. Regarding the applicant I accept the evidence of the family consultant that he continues to present as psychologically stable and competent as a caregiver to the child. She noted that the child has a “strong and positive bond” with the applicant. She also noted at paragraph 77 of the report that if the mother relocates the child “it will be important that [the applicant] addresses his emotional well-being with ongoing counselling”. I note that the applicant told the family consultant that he is attending counselling every three weeks.
The applicant in his Case Outline raises the negative views of the parents towards facilitating a relationship between him and the child. I accept that the initial position of the parents was that the child should spend no time with the applicant but they have now conceded that it is in the best interests of the child to spend time with the applicant, although their sense of mistrust remains. The family consultant in her latest report noted that an issue which emerged concerning the relocation was that the applicant did not acknowledge the opportunity for the child to experience “the likely positive caregiving system that would be available with both parents living geographically closer”. It would appear that on reflection the applicant has acknowledged this in his concession at trial.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

I am satisfied that both parents have demonstrated a responsible attitude to the child and to the responsibilities of parenthood, given the distance between them and the circumstances of the child living with the applicant. I do not accept the assertions essentially made by the applicant in his Case Outline that the mother’s anxiety and refusal to allow him to spend time with the child was without foundation. The applicant concedes that he engaged in at least some of the behaviour outlined by the mother post separation which caused her concern and which is summarised earlier in these reasons.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family

Section 60CC(3)(j) of the Act refers to any family violence involving the child or a member of the child's family. There is no evidence of any family violence involving the child but it is the mother’s case supported by the father that the applicant has engaged in family violence in his conduct towards the mother after separation. Although the applicant partially disputed the mother’s evidence about the content of the email he sent to her regarding “options”, he acknowledges the fact of having sent an email entitled “Integrity” and acknowledges the subsequent text message. In his Case Outline the applicant accepted that after the breakdown of the relationship he was suffering from anxiety and depression and points to the fact that he attended his doctor and was prescribed medication for a period of one month. He maintains that the mother’s allegations of family violence include text messages and emails sent to her by him to which the child was not exposed. The applicant relies upon the psychiatric assessment of Dr F and emphasises that the psychiatrist was provided with the mother’s affidavit material which referred to his behaviour on the breakdown of the relationship. The applicant relies upon Dr F’s opinion that he does not suffer from an ongoing psychiatric disorder and that he is “not at any particular risk of future behavioural or psychiatric issues that would impact negatively upon his parenting as a result of any psychiatric disorder”. The applicant also relies upon the assessment of Ms E at paragraph 132 of her first report where she observes that the applicant “does not present as a protective risk to the child, should the child spend time in his sole care”.

Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

As outlined previously a 12 month intervention order was made against the applicant in favour of the mother and child. This order expires on 2 May 2017. The order was made with the consent of the applicant without admissions of the allegations in the complaint so that no inferences can be drawn from the making of the order. There is no evidence before me of any findings having been made in that hearing.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Both the applicant and the Independent Children’s Lawyer urged that orders be made to provide for the child to spend time with the applicant in the event that the mother and child returned to live permanently in Australia in 2017.
Each counsel for the parents urged that there be liberty to apply in those circumstances and that there be no self-executing orders.
Pursuant to s 60CC(3)(l) of the Act I have considered whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. This is a matter which I have considered carefully having regard to the history of the litigation.
I am not satisfied that it is appropriate to make orders in the best interests of the child in anticipation of future events should the child return to live permanently in Australia with the mother. This is in circumstances where I am satisfied that there is an intention on the part of the parents to live in close proximity in the USA to co-parent the child and to settle him into a new school which specifically provides for his special needs. Should the mother return with the child to Australia to live permanently, it would be appropriate for his circumstances and those of the applicant and the parents to be reassessed. There are too many variables including whether the applicant or the mother re-partners, and the level of development of the child. The circumstances of the child’s living arrangements in the event that he returns to Australia to live cannot be anticipated now, and the factors, including the extent of his development having regard to his autism which might impact on his best interests, are unknown. Accordingly it is inappropriate to make the orders sought by the applicant and the Independent Children’s Lawyer in the event that the mother returns with the child to live permanently in Australia.

I do not propose to provide for liberty for the parties to apply in the event that the mother returns with the child to live permanently in Australia. These proceedings need to be brought to a conclusion in the best interests of the child and I do not propose to grant liberty to apply. In the event that the mother returned with the child to live permanently in Australia and it was necessary, then it would be appropriate for a fresh application to be made.

Findings

I accept the evidence of the mother outlined earlier about the conduct of the applicant post separation, which he does not dispute. This conduct included tying his neckties to a balustrade at home and threatening suicide and sending the photograph of the heart ornaments with a knife in one of them. I accept the evidence that the applicant sent a text message to the mother which read “I’m going with option 2. Happy Life Bitch”.
I accept that this conduct prompted the mother to make application and obtain an intervention order against the applicant. However I note that the intervention order was made by consent and without admission of the allegations in the complaint. Whilst the allegations in the complaint were not tested or admitted, the applicant has admitted some of the conduct deposed to by the mother in his affidavit material. I accept that the mother’s anxiety about the child spending time with the applicant immediately post separation was not without foundation.
I accept the evidence of the family consultant about the child’s relationship with the applicant and each of the parents. I accept her conclusion confirmed in her latest report that the child has a secure attachment to both parents and a strong and positive bond with the applicant. I accept her opinion that the child is also positively connected to both sides of the extended families of the parents.
I accept the evidence of the family consultant that the applicant presents as psychologically stable and competent as a caregiver to the child, presenting as realistic about the extent of his role in the child’s development.
I accept that the recommendations of the family consultant are in the best interests of the child. Those recommendations are that the child live with his mother and be permitted to relocate to City D; that the child spends time with his father as agreed between the parents and that he have contact with the applicant via Skype/FaceTime at least four times each year; that the applicant send birthday cards and correspondence to the child at other times and that if the child is in Australia or the applicant is in the USA they spend some day time with each other.
The parents were not opposed to the applicant spending time with the child on a limited basis as recommended by the family report writer. However the parents sought that any time spent by the child with the applicant be on the condition of the substantial attendance of either of the maternal grandparents in Australia or the father or either of the paternal uncles in the USA. The parents did not seek supervision but rather that there be some other relative of the child in substantial attendance. The mother relied on the conduct of the applicant post separation as evidence of his volatility and the need for a relative to be in substantial attendance.
Whilst I accept that the conduct of the applicant post separation was extremely concerning for the parents, the expert evidence supports the case of the applicant and the Independent Children’s Lawyer that he does not present as a risk to the child. I accept the evidence of the psychiatrist Dr F that the applicant does not present as a risk to the child. I accept the evidence of Dr F that the applicant does not present with a psychiatric disorder contraindicating the child spending time with him unsupervised.
I am not satisfied that there is any evidence to support the assertion by counsel for the mother that there is a risk of the applicant removing the child from the USA if he were to spend time with the child there whilst on holiday.
I find on the evidence of Dr F that the applicant has had counselling and on the evidence of the family consultant he continues to attend for counselling every three weeks with Ms H.
On the evidence of Dr F and the family consultant, I am not satisfied that the applicant represents a risk to the child in circumstances where he would spend time with the child in Melbourne or in the USA whilst on holiday.
Taking into account the evidence of the family consultant and Ms G concerning the child’s autism, I am satisfied that it is appropriate for a relative, as proposed by the parents, to be in substantial attendance for the first hour of any time which the child spends with the applicant. This is taking into account the disruptions referred to by the family consultant in her latest report which the relocation would occasion for the child. Ms E referred to the child’s grief in response to leaving family and friends as well as school and other networks in anticipation of the relocation and stated that it will be crucial that the parents establish a stable and reliable routine of caregiving relatively quickly. I am satisfied that the initial substantial attendance of a relative for the period when the child spends time with the applicant will ease the transition and facilitate the child’s time with the applicant. This is particularly so where there may be significant time when the child has not had face to face contact with the applicant and the child’s living environment has significantly changed.
I am not satisfied that it is in the best interests of the child for him to communicate with the applicant via Skype or FaceTime for 30 minutes on the first Saturday of each month as proposed by the Independent Children’s Lawyer and the applicant. This is not supported by the family consultant who specifically recommended at paragraph 92 of her report that there would only need to be contact by Skype/FaceTime for around four times each year for the child to retain the positive memories of the relationship. She also pointed out that the child’s adjustment to the relocation will be supported by less frequent contact with the applicant. Accordingly I find that the parents’ proposals regarding the contact by Skype/FaceTime are consistent with the recommendations of the family consultant and in the best interests of the child.
I find that it is inappropriate to make any orders for the applicant to spend time with the child in the event that the mother returns with the child to live in Australia. The circumstances of any future return to Australia for the child to live permanently would amount to mere speculation at this time, and there is no evidence to satisfy me that it would be in the best interests of the child to make such an order.

Conclusion

I am satisfied that the applicant does not present a risk to the child but on all the expert evidence and in accordance with the recommendations of the family consultant that it is in the best interests of the child for the child to communicate with him on approximately four occasions annually.
I am also satisfied that it is in the best interests of the child for him to spend time with the applicant during the day for a period of six hours in the USA should the applicant travel to the USA or in Melbourne for the same period of time should the child travel to Melbourne temporarily. However, the time spent by the child with the applicant should be conditional upon either of the maternal grandparents in Melbourne or the father and either of the paternal uncles in the USA being in substantial attendance for the first hour of that time.
Unless there is agreement between the parties, there should be only one period of six hours of time spent per one month period during any visit by the applicant to the USA or by the child to Melbourne.
The parents should bear in mind what the family consultant reported at paragraphs 80-81 of her latest report where she said of the applicant:
[The parents] must find a way to appreciate that [the child’s] memories of the relationship with [the applicant] have been positive and have comprised a significant period in his life. It would not facilitate [the child’s] development if he experiences his parents as attempting to corrupt his memories of the relationship with [the applicant].
[The applicant] is an important emotional and caregiving figure for [the child] and [the child] continues to express grief about his absence. It will be crucial that [the mother] and [the father] allow the child to continue to have a relationship with [the applicant], whether in person or indirectly if relocation proceeds.
I note that the fixed view of the parents reported by the family consultant that the applicant presents a risk to the child “should he even speak with” the applicant was tempered to some extent by the time they made their joint proposals on the first day of trial. They have largely accepted the recommendations of the report writer and the mother has accepted by way of consent orders an obligation to notify the applicant should she return the child to Australia permanently and to keep him advised of her contact details, including postal address, email address, Skype or FaceTime username and telephone number.
B has many significant persons in his young life and a spirit of cooperation between the parents and the applicant will ensure that he thrives in his new environment.
The applicant’s proposal that changeover take place at McDonalds in Suburb C when the child is in Australia is appropriate in the event that there is no agreement between the parties to an alternative venue.

ANNEXURE A
The applicant relied upon the following documents:

Affidavits of the applicant filed 23 November 2015, 15 January 2016, 4 February 2016, 2 June 2016 and 9 August 2016
Psychiatric report by Dr F dated 25 February 2016
Family report by Ms E dated 16 April 2016
Ms E’s response to the first respondent mother’s “Questions to single expert witness” dated 7 June 2016
Updated family report by Ms E dated 14 August 2016

The first respondent mother relied upon the following documents:

Response prepared jointly with second respondent filed 28 July 2016
Affidavits of the first respondent mother filed 19 January 2016, 17 May 2016, 28 July 2016 and 12 August 2016
Affidavit of Ms G filed 7 July 2016
Affidavit of Mr I filed 28 July 2016

The second respondent father relied upon the following documents:

Response to Initiating Application filed 17 May 2016
Response to Application in a Case filed 17 May 2016
Affidavits of the second respondent father filed 25 February 2016, 17 May 2016 and 11 August 2016.

I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 September 2016.

Associate:

Date: 23 September 2016

[2016] FamCA 822

23 September 2016

Key Legal Topics

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Family Law

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Remedies

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