Wul and Au-Yong

[2016] FamCA 1041

FAMILY COURT OF AUSTRALIA

WUL & AU-YONG [2016] FamCA 1041

FAMILY LAW – PARENTING – International relocation – finely balance case – where the wife wishes to move with 5 year old boy to Taiwan. Permission to relocate granted.

Family Law Act 1975 (Cth)

A v A (2000) FLC 93-035
Godfrey and Sanders [2007] FamCA 102
Kopel and Ferro [2016] FamCAFC 202
Mazorski and Albright [2007] 37 Fam LR 518
McCall and Clark (2009) FLC 93-405

U v U (2012) 211 CLR 238

APPLICANT: Ms Wul

RESPONDENT: Mr Au-Wong

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4588 of 2012

DATE DELIVERED: 29 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8, 9, 10, 11 August 2016, 21 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Pearsons Solicitors

COUNSEL FOR THE RESPONDENT: Mr Puckey

SOLICITOR FOR THE RESPONDENT: Berry Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ambrose

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That all extant parenting orders are forthwith discharged.

2. That the husband and the wife take all necessary steps to register these orders in a court of appropriate jurisdiction in Taiwan such that they are enforceable by the husband.

3. That the husband and the wife have equal shared parental responsibility for J born … 2011 (“the child”).

4. That from 22 August 2017 (for the purposes of s 65Y of the Family Law Act 1975 (Cth)) the wife has permission to take the child from Australia to live in Taiwan.

5. That other than as prescribed by these orders, the child live with the wife.

6. Until and including Monday 22 August 2017, the child spend time with the husband as follows:

   (a)Each weekend from 4.00pm on Friday (or such time as kindergarten concludes) until 6.00pm on Sunday;

   (b)From 4.00pm on Christmas Eve 2016 until 6.00pm on Christmas Day 2016; and,

   (c)By electronic communication (Skype or equivalent) at 6.00pm on each Wednesday with the wife being responsible for making the call.

7. From 22 August 2017 (unless the wife does not move to Taiwan and in which case, the parties shall have leave to seek alternative orders if agreement is not reached) and subject to paragraphs (8) to (11) of these orders, the child spend time with the husband during the following periods:

   (a)For the period of 14 days from 4.00pm on 24 December in each odd-numbered year and from 4.00pm on 25 December in each even numbered year;

   (b)For the period of 14 days after the conclusion of school term 1 according to the Taiwanese education authorities, in January each year;

   (c)For seven weeks commencing at the start of the summer vacation (as determined by the Taiwanese education authorities);

   (d)For a further period of 14 days at such other times in Taiwan as the husband may be able to arrange; and

   (d)By electronic communication (Skype or equivalent) during all intervening weeks when there is no face to face contact occurring on three nights per week at 6.00pm or such other time as may be agreed in writing (Taiwanese time) with the wife being responsible for making the necessary connection.

8. Until 1 January 2019, for the purposes of paragraphs (7)(a) to(7)(c), the contact time shall be by agreement and failing agreement, on a rolling cycle of 72 hours with the husband followed by 24 hours with the wife.

9. For the purposes of paragraphs (7)(b) and (7)(c) the wife shall bring the child to Australia to meet the husband at the Melbourne international airport.  The wife shall book and pay for all fares for herself and the child but the husband shall contribute the identifiable cost of the child’s airfare (if any) within 14 days after the child’s arrival in Australia by payment to the wife’s nominated bank account (until the child is able to fly unaccompanied by an adult in which case, the husband shall purchase and pay for his airfares).

10. After 1 January 2019, for the purposes of paragraph (7)(a), the husband’s time with the child shall be spent in Taiwan but with the husband having the option of bringing the child to Australia every even-numbered year for that relevant period.

11. For the purposes of paragraph (7)(d), the husband shall give the wife 14 days electronic written notice of his intention to go to Taiwan.

12. All passports of the child shall be released to the wife and held by her but made available to the husband if he is travelling internationally with the child.

13. That the respective applications of the parties are otherwise dismissed.

14. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Wul & Au-Yong 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 4588  of 2012

Ms Wul

Applicant

And

Mr Au-Yong

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Mr Au-Yong (“the husband”) and Ms Wul (“the wife”) have one child, a boy named J born in 2011. He is almost five years old.  Despite his age, the child has not spent extensive time with the husband and away from the wife. After living in Australia for 19 years, the wife wishes to move to live permanently to Taiwan where she was born. It is an uncontested fact that she is very unhappy in Australia and I accept she feels isolated.  The husband opposes the move observing that his relationship with the child is developing and he fears it will “erode” the gains he has made. This is a case where the best interests’ principles determine which of the parties’ proposals best meets the needs of the child but I accept that the desires of each of the parents cannot be ignored. 

The parties

1. The wife is aged 35 years and has lived in Australia since coming here at the age of 16 to study.  Her family remains in Taiwan. 

2. The husband is aged 35 years.  He was born in Australia but has Chinese heritage.  Although originally a science professional, he returned to study and has begun a new career. 

3. The parties married in 2010 and separated in May 2012 at which time, the child was only five months old.  For cultural reasons, the husband and wife had gone to Taiwan for his birth. There were post-birth complications that delayed the wife’s return to Australia, the husband having returned earlier, and when she did, the marriage immediately ended. The husband left the home and the parties have since communicated at a basic level.

4. Subsequent to their separation, disputes about the child arose, some of which become relevant in the current application.  Court proceedings ensued about whether or not the wife could take the child back to Taiwan for specific reasons including to attend a funeral ceremony after her father’s death. Another was  to allow her to give birth to a second child (not the child of the husband) but according to Taiwanese cultural practices. These trips were opposed by the husband but permitted by the Court. More recently, agreement has been reached but there is still mistrust and it became palpable in this final hearing.

5. One thing not in dispute is that the child will live with the wife. Curiously, at paragraph 145 of his affidavit, the husband said that if the wife chose to go to Taiwan without the child, he would take up her carer role. He added that if the Court saw fit for the child to live with him, he would remain in his parents’ home. That was his position in a formal response filed on 27 May 2016 but it did not reappear in his outline. To contemplate that the wife might leave the child behind and separate him for his sibling could not have been a serious proposition knowing what the husband knew about the wife.

6. Importantly, for the reasons that follow, I find that both parties are good parents although that may not be readily apparent from the evidence presented. This is a finally balanced case when the respective proposals are considered but I find that it is in the child’s best interests for the wife to move to Taiwan and for him to go with her.

The background

1. Since separating, neither party has repartnered in the sense of any living arrangement.  The details of the wife’s second child, such as gender and name, only became apparent during the trial although there could be no suggestion that the husband did not know of the existence of a child.  It was the wife’s view that those details were irrelevant. In my view, she was wrong.

2. The husband lives with his parents.  He has acquired a house and land package and has plans to move there upon its completion.

3. Even though the child is nearly five years of age, he has not long been staying overnight with the husband and his extended family.  That gives rise to the husband’s concern about losing the momentum he has gained if the wife goes to Taiwan.

4. The child is an intelligent bilingual child.  He is quiet and does not seem to easily socialise at his kindergarten.  He will not start school until 2018 despite being almost 5 years old because he will not be ready in 2017.  He is well cared for by both parents and the husband has a responsible and loving extended family. Similarly, nothing suggests that the wife is not a capable and protective parent. 

5. The wife’s view is that her parenting will be easier and better for the child with her family around her in Taiwan.  That family is her mother, grandmother and aunt who live together. 

6. The wife is a professional by training but she has had other occupations since graduating.  She is not in paid employment but proposes to return to work in Taiwan. 

7. The wife proposes that, if the husband is able to allocate the time, she will make the child available for 13 weeks of the year; nine of which would be in Australia and four in Taiwan. That is a lot of travel and expense but it was not suggested that such a plan could not be implemented. Her additional proposal was for electronic communication which she proposed occur on three days per week. As will be seen later, the major trips to Australia revolve around the Taiwanese school holidays.

8. Much of the focus was on whether the wife would (as distinct from could) fulfil her proposal. The husband mistrusts her (although his position was at times confusing) and the single expert witness who is a psychologist was not particularly complimentary of the wife either. For the reasons that follow, I find no substance to those concerns. Because of the mistrust argument, the husband brought a large amount of evidence about the wife which had to be explored even though this is a positive inquiry about what will best meet the child’s future needs.

9. If the child was to remain in Australia, and on the assumption of a significant increase in his contact time occurring, the husband’s case initially was that his employer had a workplace policy that would have enabled him to care for the child whilst occasionally working from home.  That included the opportunity to “purchase” extra recreation leave; that is, to extend his holidays beyond the standard four weeks per year without pay.  All of that was cast into doubt when, very recently, the husband’s law firm lost a number of partners to another firm and his dilemma was whether he pursued a career with those partners in the new firm or stayed where he was. At the conclusion of the hearing, his future remained unclear. If he left the current firm, his opportunities and entitlements including any bank of leave may not necessarily be available; that would put into doubt his proposal both as to time with the child in Taiwan as it would in Australia.  How a change of employment would affect his availability to care for the child remains unknown save that, on any view, he would require assistance from his family or indeed the wife.  He could not be a fulltime carer for 13 weeks. 

The litigious background

1. When the child was six months of age and just after separation, an ex parte application was made by the husband to a federal magistrate to preclude the wife from international travel.  The evidence supporting that application was that the wife had threatened to remove the child to Taiwan.  The wife denied ever making such a threat (see [2] of judgment 19 October 2012).  Whilst the parties were dealing with their recent separation, that dispute unsurprisingly did not help their relationship.

2. The first hearing in this court was in October 2012 when the wife sought permission to travel to Taiwan with the child for the funeral arrangements of her father who had died the week before in tragic circumstances in a tsunami.  Her application was opposed by the husband. He had no difficulty with the wife going but wanted the child to remain. the child was not then one year old.

3. The husband was then asserting that he was unsure whether the wife considered the marriage relationship had broken down irretrievably; he was hopeful of a reconciliation. 

4. The parties attended upon psychologist Ms S for the purposes of providing expert evidence to the court. Ms S became the single expert witness in the proceedings and her involvement spanned the life of the litigation. I refer to her in these reasons in her capacity as that single expert witness.

5. In 2012, Ms S said that overnight time should not be considered by the husband in the foreseeable future because he lacked confidence in parenting and knowledge of children.  Thus, if the wife was to go to Taiwan, she could not have left the child with the husband; in addition, she was still breastfeeding.  The husband wanted significant time with the child and was alleging that the wife was thwarting that.  Ms S thought that the wife was acting responsibly (see paragraphs 13 and 14 of the judgment of 19 October 2012).  I ordered that the wife be permitted to take the child with her to Taiwan. For the record, she returned to Australia. At that time, the child’s time with the husband was generally limited to day time hours.

6. In 2014, the parties were before the court again.  This time, the wife wanted to return to Taiwan to give birth to a second child.  Her application was based on cultural issues about confinement.  The child had been born in those same circumstances. The husband’s position was essentially twofold. First, there was the risk the wife would not return (paragraph [9] 2014 judgment).  Secondly, there were confinement facilities in Australia and therefore going to Taiwan was unnecessary.

7. In the 2014 hearing, the wife sat in court through a significant attack on her credibility. With the husband represented by senior counsel, assertions were made that:

   ·The wife could not be trusted and the court had to look behind statements that she made which were more “complex and suspicious than they appeared peripherally to be”;

   ·The wife’s evidence that her mother did not speak English was a “blatant lie”;

   ·The wife had sent funds back to Taiwan in respect of property dealings in Australia said to be for the repayment of loans but no such loans were recorded and accordingly, the wife was untruthful;

   ·The wife had made “false allegations” to obtain an intervention order  (the wife’s claim was that the police took out the intervention order application and she had not sought it); and

   ·The wife had made “false allegations” to the Department of Human Services about the husband hurting the child including shaking him.

8. Ultimately, despite all of that, the wife was permitted to travel to Taiwan.  Again she returned.

9. In the current proceedings, the wife’s counsel submitted that it was hardly surprising that there was not much enthusiasm from the wife about any relationship with the husband (as distinct from any relationship concerning the child) because of the accusations that had been made against her.  There is substance in that submission.

10. Despite all of the litigious jousting and emotive language, I find that both parents are decent people but their trust in each other has been badly affected by the litigation process.  I also find that the views expressed by Ms S have been coloured by both the inaccurate statements made by the husband and the reticence of the wife to appear effusive about the husband’s role in the child’s life.  I am satisfied that apart from the wife being a quiet and retiring sort of person culturally, she has certainly been strongly and unfairly criticised. 

11. When the husband was cross-examined, he portrayed a different picture about the wife to that painted by his counsel in 2014. He distanced himself from the way she was portrayed and maintained he did not give instructions to so present her. None of the allegations in [23] above were issues in the current proceedings.

12. An adverse inference is not drawn against the husband for the oral presentation of his senior counsel.  I accept that he genuinely thought the wife would move Taiwan.  He knew from their separation that she yearned to go there and that she was unhappy remaining in Australia.  The husband has to take some responsibility for the shutting down of communication because he provided the evidence for the 2014 hearing but it was the unnecessary and strident criticism that did significant damage here and explains to some degree why the wife’s position of lack of responsiveness occurred. Parties cannot expect the court to criticise their spouse for lack of co-operation even in a painting case when those attacks are made. 

13. The question which might have been more relevant at that time was whether the wife would have unilaterally and surreptitiously, returned to Taiwan with the child. I do not accept she would have.

14. The wife has lived in Australia since she was a teenager but returned to Taiwan regularly as a student and, after meeting the husband, they travelled to Taiwan.  As part of the early litigation, the wife sought an order enabling her to live permanently in Taiwan but after reading a report of Ms S, abandoned that only to resurrect it in the current application.  Some of the matters in dispute (but not all) can be attributed to the breakdown in communication. 

15. This is a positive inquiry assessing and comparing the respective proposals to decide which best suits the needs of the child.  It is also important to recognize that these parents have many years ahead of dealing with each other about the child. What follows indicates the various disputes that cloud the parties’ proposals but also make it hard for them to appear co-operative.

Some of the disputes

B’s name

1. The husband and his family initially called the child “D” (which is his middle name). The husband explained that this was his “English name” and it had been chosen by the wife. It is apparently no longer a problem but it was in 2014. In my 2014 reasons for judgment. I observed the following:

   Such is the dispute between the parties that they do not even agree on what their child will be called.  The evidence suggests that the child’s registration of birth name is [J].  The wife calls the child “[J]” and the husband calls the child “[D]”. 

2. In the husband’s 2014 affidavit (exhibit H 3), his only reference was to “D”. In the final hearing, the husband said that at the start of 2016, he had asked the child what name he “liked” and the child responded “J”. That is now how he is known. Until that recent acknowledgment, there was a problem looming.

How well is the child settling into the overnight contact?

1. The husband described his time with the child as progressing well and made no reference to problems of substance. In his oral evidence, he said that if the child woke up alone (as the child was sleeping in his own room), he became distressed. That was not previously mentioned nor had the wife made mention of similar problems. She also did not point to problems after the husband’s time concluded.  There is no current evidence of separation anxiety or distress other than that which emerged in cross-examination and that was very limited. The husband is able to settle the child. There had been distress at the crèche but that appears to have dissipated and the wife expressed no concerned about the husband’s ability to care for the child.

The parties’ communication on health

1. Although most of the evidence focussed on a lack of responsiveness by the wife to what the husband wanted to do, it was not entirely one-sided. The following is a minor but indicative problem. The wife gave evidence that the child told her he had been given “medicine”. She raised the subject with the husband “by text” and, he agreed he had administered “Children’s Panadol”. That evidence did not accurately portray what occurred. At handover, the husband had observed the child was unwell. He there spoke to the wife about it. In her evidence, she agreed that they had at least conversed although the details were vague.

2. On the night after the child told his mother of the panadol, the wife (by text) requested that the husband tell her about health issues in future. That was odd in circumstances where there had been some form of discussion at the handover. The wife’s concern seems to have been that she might overdose the child but that is improbable.

3. The wife’s response to the husband was unnecessarily blunt but the significance lies in the fact that it was not suggested that the husband could not care for the child that night nor that providing the medication was inappropriate. I find that the wife accepted what the husband did was sensible.

Overnight contact “problems”

1. The husband has always wanted more time with the child and he portrayed the wife as just refusing.

2. He described the wife “dragging out” overnight time until the child’s third birthday.  

3. Between the child’s second and third birthdays, the husband generally deferred to the wife about time with the child indicating that what she was suggesting was sensible.  This deference contributed to an accusation that the wife was controlling but worse, it was the basis for a submission that the husband just went along with whatever she dictated for the avoidance of confrontation.  I do not accept that.  I am satisfied that although frustrated, he saw the benefits for the child in taking steps slowly.  The husband has been able to settle the child and there is no evidence that the child has demanded to be returned to his mother.  the child just goes where his parents dictate.  I also reject the portrayal of the husband as simply compliant or accommodating of the wife to avoid confrontation. I find that he has considered all of the wife’s requests and decided that what he has agreed upon has been best for the child. That can be seen in his concessions to which I return below that there has been communication about issues and importantly that extending the current regime is not best for the child until the middle of 2017. That militates against any finding that the wife is manipulative or endeavouring to cut the husband out of the child’s life.

The husband’s view about what the expert was recommending

1. There was even a dispute between the parties about what Ms S was advising as to the child’s capacity. Whilst any confusion about Ms S’s recommendations might have had something to do with the way the report was written, the husband was content to extend contact time slowly. The relevant report referred to suggesting the husband should have two consecutive nights but there was confusion as to whether that was weekly or fortnightly. The husband conceded what was written had not been discussed and when pressed as to its meaning, he thought the expert meant two nights in one week and one on the alternate weekend. That led to questions about what he (as distinct from the psychologist) thought was good for the child and he replied that two consecutive nights could start in 2017. Indeed, he used the expression about the wife’s position:

   “whatever sort of suits her”.

2. To the extent that how the parties communicated about the child was relevant to Ms S, she said at [19]:

   [The wife] reportedly controls all aspects of the child’s life and [the husband] is considered as a “nuisance” when he asks questions or wants to participate.  He is provided with necessary information only and otherwise, she is circumspect and controlling in what is shared with him.

3. I make two findings. First, the parents have communicated about, and indeed, agreed upon, what the child can manage. Secondly, Ms S’s portrayal of the wife, to the extent that it was intended to convey stubbornness in endeavouring to limit the husband’s time, is rejected.

Other contentious facts

1. The outline of case filed by the husband makes observations such as:

   ·    The wife does not respond positively to the husband in his seeking to be more involved in the kindergarten routine of the child;

   ·    The wife attempts to curtail information from the kindergarten;

   ·    Constant references to statements of criticism of the wife by the family consultant (which I shall find below are either incorrect or unwarranted) justify a finding that the wife is not co-operative with parenting;

   ·    The wife “sometimes” responds negatively and restrictively to the husband’s attempts at negotiating time with the child; and

   ·    In a trip to Taiwan, the wife “placed restrictions” upon the husband’s “time” with the child.

2. Those statements are unhelpful and only marginally, if at all, supported by evidence. The husband acknowledged in a frank and sensible way that the wife would not thwart his relationship with the child.  That concession seems at odds with his written outline of case.

Would the wife do more than the bare minimum in her role of encouraging a relationship between the husband and the child?

The 2014 Taiwan trip

1. The husband visited Taiwan when the wife was permitted by the Court to take the child in 2014. In the outline of his case for the present trial (which I appreciate is not evidence), the husband alleged:

   “Again the Mother placed restrictions upon that time.”

2. That assertion repeated what Ms S had said about the wife not embracing and fostering the relationship and adding that there was little evidence that she was capable of doing so. That was unfortunate because the correspondence showed there were negotiations about contact time in Taiwan. The husband acknowledged that he had the time as had been arranged.

3. When preparing an outline of a case and endeavouring to assist the court focus on what is in dispute, attention must be directed to the relevant matters that the court has to determine. A blithe repetition of the views of a family consultant may not identify the contentious issues and in this case, it did not. Care should also be taken in regurgitating a chronology (if one is deemed necessary) to identify disputed facts as distinct from a repetition of affidavit allegations because they may not be found to be correct. In this case, the outline was not helpful because the evidence did not support Ms S’s perceptions of the wife. 

4. Upon his arrival in Taiwan in 2014, the husband was met with a number of unexpected and unusual events.  He alleged that he and his companion were followed throughout their time in the city.  He relied upon a number of photographs showing, or focussing on, a bag carried by a male.  It is not clear what difference any of this made other than perhaps, his time with the child was being monitored. The photographs show a male and in particular, a shoulder bag. My impression was that the latter was the common thread in the photographs. Counsel for the wife submitted that such a common thread was hardly sufficient to draw an inference that the wife was having the husband followed and I agree.  But even so, I remain perplexed as to its relevance to any determination here.

5. The wife denied the “tailing” was instigated by her. Her role, if any, was not explored further but even if she had authorised or instigated it, the incident highlights that neither parent trusts the other. But for what purpose this exercise could protect the child, I am at a loss to know. I would not attribute the responsibility of this incident to the wife.

6. More significantly, the husband was met by (it would seem) a local lawyer, plus some other clerical person and the child’s grandmother at a police station.  The fact that it was at a police station is indicative of lack of trust. The husband is a quiet and articulate man about whom, no propensity to violence was suggested in the evidence. A police station is an inappropriate venue in those circumstances where there is an impressionable child involved. Happily, nothing seems to have adversely affected the child.

7. The husband was given a “memorandum of understanding” in the English language to sign before the child was handed to him.  This incident provoked sufficient consternation in the husband to make it a piece of evidence but I again question what it establishes. I am satisfied that this demand of the husband was totally unnecessary if it was thought, by whoever orchestrated it, that the husband would not return the child.  There were orders in place. The husband signed the document and the child was provided.  These events too engendered mistrust and distracted attention from what should have been a holiday atmosphere. The husband’s evidence was that once these problems were forgotten, he and the child had a wonderful time.

8. The wife did not dispute the existence of the memorandum of understanding.  She certainly knew it was happening.  When asked why the documents were prepared, her response was that it was an acknowledgement that she had complied with the law.  That was an implausible answer.  It is not suggested in respect of her future proposals that any such document would be required of the husband when she came to Australia with the child nor could it be because of the existence of orders. If the wife went to Taiwan and this sort of cloak and dagger behaviour was repeated, it could only be to frustrate the husband’s time with the child. Against that, it is clear that any orders of this Court can be registered in Taiwan for enforcement purposes so that sort of inappropriate behaviour would be unnecessary.

9. A far more important issue about that trip which gives some (albeit limited) insight into how the child would cope with the periods of absence of physical contact, was how he reacted in the changeover.

10. The husband and the child had, at that time, been apart for approximately two months and when the changeover occurred, the wife was not present.  A nanny was caring for the child and although the child “appeared hesitant”, no other indication was given of any changeover problems.  Consecutive days of contact time followed without difficulty other than the child’s reluctance to go back to the nanny.  If that sort of reaction occurred after two months when the child was only three years old, it is hard to conclude that there would be future difficulties.  Furthermore, in circumstances then where the child was apparently happily left by the wife with a nanny and her mother, neither of whom could possibly have been significant figures in his life, it is similarly indicative that the child adapts to change reasonably comfortably. The husband’s case is that his relationship with the child will be “eroded” although the use of that word without a definition or context is not helpful but in any event, this sort of evidence does not support a conclusion that the child’s reaction to his father will be one of resistance or that there will be distress and anxiety during contact periods such as to require the child to be returned to the wife. If anything, when I turn to the proposals below, the wife has anticipated that by suggesting a building–up of time and, in accepting her proposals if the Court permitted the relocation, the husband too must be seen to have recognised that.

11. Some further insight as to how the child copes with absences and change can be seen (although in a much more limited way having regard to his then age) after the child’s return from Taiwan in 2012. The husband described him as “cautious” and he “peered over my shoulder” in the wife’s direction as he was carried to the husband’s car.  He observed that the child was “a bit clingy” to the wife when he reached for him at the handover.  Despite that, the child went into the father’s care and the evidence does not otherwise indicate that the husband did not handle the situation well. The wife did not indicate any adverse aftermath.

12. None of these handover matters was raised with Ms S other than what she was asked (by me) about the manifestation of any problems that there might be for the child if he was away from the wife for too long.  Ms S was unable to say how the child would react. Whilst that may be a professionally based answer, the evidence here indicates that the child is compliant and happily goes back and forth between his parents.

The lack of a father figure in the wife’s life

1. The husband’s view was that the wife would only have women around her if she went to live in Taiwan. He argued (with some support from Ms S) that the child would have no concept of the role of a father and, in the case of the wife, that she had no desire to have the husband in the child’s life.  The husband asserted that the wife had really been without a father in her childhood and consequently, she saw no reason for her two children to have that father figure now.

2. The wife denied the husband’s factual premise.  There is no doubt that her father was absent for periods of her life but on business more often than not in the United States.  That factual premise also arose from the wife’s parents being divorced. The wife thought the divorce was something to do with her parents’ financial convenience but how, remains uncertain.  The husband pointed to the father not attending their wedding to which he had been invited and asserted that his absence indicated that he was not involved in the wife’s life.  The wife explained he was incapacitated by a car accident.  Curiously, this issue was not pressed with any vigour and it must have been a matter of objective fact that could have been easily proved. The wife said the accident and her father’s absence was mentioned in the speeches. It was not suggested that the wife was lying. There is no reason why I should not accept that what she said was correct.

3. The wife also produced various photographs in which she appeared with her parents at various times of her childhood and teenage years.

4. The balance of probabilities here suggests that even if there was some form of illegality or oddness about the parents’ divorce and lifestyle, the wife’s father was involved in the wife’s life and he was a person whom she respected. The problem with this confusion lies in how Ms S dealt with it. She wrote at [60] that the wife was “an only child raised by women” and consequently her appreciation of the “father/child relationship” seemed limited. That view came from what she was told by the husband but Ms S said that she was left “in doubt” whether the wife was embracing the role. I find that there was a conflating of concepts here. To the extent that Ms S understood that the wife’s father had such a limited or no role such as to justify a conclusion that she was raised by women, I find she was wrong. The evidence does not support such a factual conclusion. To the extent that Ms S thought the wife was not embracing the importance of the child having a father in his life, that certainly is inconsistent with what the wife said to the Court. I have no reason to doubt her sincerity. What was not raised in any detail was the absence of a father figure for the second child but two observations can be made about that. First, the basis for having a second child was so that the child would have a sibling. Secondly, the father of that child is apparently having some engagement with the wife albeit not with the child as, from the wife’s perspective, it is not the time to do otherwise. Misguided though some people might think all of that is, if those beliefs were genuinely held about the second child, it does not necessarily follow that they applied to the child. I accept the evidence of the wife that she sees the husband’s role in the child’s life as important.

English language would not be spoken?

1. Another issue was that if the wife returned to Taiwan, she would be living in a house where English was not the first language spoken.  The inference the husband would have the court draw is that the child would be disadvantaged in endeavouring to have a relationship with him in the future.  Against that, the overwhelming evidence in this case is that the child is a very intelligent and articulate child who is already bilingual.  If there is a significant role for the husband in the child’s life both physically and through electronic means, it is difficult to see how the child will lose the English communication skills.  The wife was adamant that she would continue to use English and there are international schools in Taiwan.  I do not consider the English language issue is of importance.

2. The husband also selected four topics directed to what he says are indications that the wife does not see him as having any role of significance in the child’s life:

   (a)the wife’s approach to the commencement of overnight time by the husband and its increase;

   (b)the kindergarten enrolment problems;

   (c)how the wife treats the husband’s time with the child when the child is ill; and

   (d)an issue of the significance of toilet training.

the history of contact time

2015 Dispute

1. In January 2015, the extant arrangements were for the husband to collect the child from the wife’s residence in Suburb A and for the wife to collect at the conclusion of the time from the husband’s residence in Suburb E. That is a significant cross-town trip on any view, involving hours of driving.

2. The wife asked for an alteration to the arrangements. She wanted the husband to do all of the travel. The wife claimed this was a stressful time because she had a newborn child and found it difficult to manage. She told the husband why she needed his assistance. The husband’s solution was to seek to alter the times to allow him to return later so he could conclude an evening meal. The wife described the husband’s response as “disappointing” not because of the impact on the child but because she did not often ask for help and the husband’s response made things more “stressful”. For his part, the husband described the situation as one in which he communicated “positively and collaboratively” giving alternative suggestions. He then concluded that his “open and collaborative communication was not reciprocated by (the wife) at times”. This sort of negotiation is indicative of the problems these parents have. I accept that with the cross-town travel at the times involved and, with young children including a newborn, it would have been stressful and inconvenient. It could not be said that the wife was being unreasonable or endeavouring to make life difficult for the husband for the reasons just mentioned. It equally means that the husband would have been doing significant driving cutting into his time with the child save that he had the child in the car with him. I find this was not, and now is not, indicative of an entrenched and non-negotiable position on the part of the wife.

1. Similar problems arose over whether the child should be collected from his day-care centre. The husband’s idea was that picking up the child at the day-care centre would give him some involvement there.

2. The wife’s response was that she had “reservations” about breaking the child’s routine anticipating the child’s distress at her absence.  The husband did not disagree because there had been some distress.  If this was intended to show intransigence on the part of the wife, it did not do so. There was discussion about how the child would manage the change and agreement was reached. According to the wife, over a period of time, the child was described as “happy” at the outcome.

3. Much was also made by the husband of how the wife attended anyway and watched the process. If, as I accept, she was a very protective mother, apart from his discontent with her presence at the day-care centre, it is difficult to see why she should be criticised if she was concerned to settle any distress. I am conscious of the statement by Ms S in 2012 that the husband lacked experience and as his time had not advanced much, and indeed been disrupted by overseas trips, the child being unsettled was possible. To the extent that the husband criticised the wife for this, it seemed common ground that the distress was the issue and neither party had any serious objection to it.   

The husband’s views about the amount of time

1. In his Outline of Case, the husband said:

   …the Family Consultant observes the tension and lack of communication between the parents and raises concerns about whether the Child is permitted by the Mother to talk about his sibling or his family and the need to keep “secrets” creates untold pressure and stress on a child.

   [12]The Family Consultant also observes in relation to the mother, that there is growing evidence of enmeshment with her son and while she is complaint with Court Orders, there are cautionary factors that need to be considered.

   …

   [28]The father has consistently spent time with the child since his birth and taken the initiative to engage with the mother to negotiate increases in his time with the Child, including the commencement of overnight time with the Child.  However the Mother has sometimes responded negatively and restrictively to the Father’s attempts at negotiating time with the Child (sic).

2. The wife articulated her view that the current contact time needed to be increased with “age development”.  Those statements were not accepted by the husband.  The husband said that he had done his “upmost” (sic) to work cooperatively with the wife and he was always polite and courteous but he maintained that, at times, communication was difficult.

3. He pointed to his request in December 2015 to increase the overnight time to one per week “commencing on 4 January 2016”.  It took until 3 January 2016 for the wife to reply. She agreed but suggested it start on 15 February 2016 to give the child an opportunity to adapt to school and routine.  Only days later, the wife wrote asking him to delay the implementation until the end of February 2016.

4. The wife subsequently requested a delay until the end of March 2016 and later to April 2016.  She was concerned about breaking the child’s “routine” and that he had cried when things were altered.  The husband pointed to emails and the communication book which included the wife’s list of “instructions” about the child’s routine.  They were very detailed; times and events were underlined and, at times, emboldened. This sort of communication was indicative of the wife being restrictive and controlling but it must also be understood that even Ms S thought the wife very protective.  Ms S noted the husband’s time continued to be limited and that the wife had “consistently delayed added time” for the child.

5. Ms S reported, consistent with the husband’s evidence, that he (the husband) had:

   Little confidence that (the wife) fosters his relationship beyond the precise requirements of the court orders; and indeed, that she will have the capacity if she chooses, to deny him any time with his son or at best, she will continue to control and dictate their time together.

6. At [18], the family consultant said the husband was not confident that the wife’s attitude had shifted and that he had contended she was both antagonistic and indifferent to his communication.  But, when cross-examined, the husband agreed that his statement (which was apparently accurately reported) was “unfair” and that contrary to his assertion about lack of consultation, there had been.

7. Ms S’s statements arose out of the husband’s attendances in July 2016 so they were recent to the commencement of the trial.

8. When the husband gave evidence, he conceded that the first delay was mistakenly written by the wife and as the child had not commenced school, that was obvious.  Until his cross-examination, it appeared that he was criticising the wife for backing out of a proposal that would have seen an increase in contact time.

9. On 5 February 2016, the wife wrote to the husband asking for a delay of the second of the fortnightly overnights because both parents had observed the child distressed and upset at kindergarten.  Remarkably, the parents were negotiating about a second night and the wife wrote that it was up to the husband to decide on the solution. 

10. The husband’s email response to the wife’s communication was that he was “amenable” to an adjustment to the overnight plan such that it not commence until the end of March 2016.  This was negotiation.  Whilst he distanced himself from any suggestion that the emails were often like this, the importance of this one was the focus on the child’s capacity to handle not just change but separation from the wife. The wife’s deferral to the husband must mean that she acknowledged he could handle any difficulties in caring for the child.  On that evidence, I do not find the wife was controlling and dictating. Ms S’s opinions were in part drawn from what she was told by the husband. Her views about the wife then become less plausible.

The kindergarten enrolment

1. Another example of the communication problem but also said to be indicative of the wife excluding the husband which would be a problem if she was in Taiwan, can be seen about co-operation (or in the husband’s view, a lack of it) over the child’s kindergarten enrolment.

2. The husband wrote to the wife about enrolment and she did not respond.  That began in February 2014 when the child was two years of age.  In January 2014, the parties’ parenting dispute had been before the Court and the case set down for trial. The husband’s proposal was that the child be enrolled in a three year old kindergarten to commence at the start of 2015.  Nothing happened.  In September 2015, the husband asked the wife for her “thoughts” about a four year old kindergarten for 2016.  This time, the wife responded and said she would “look into it”. 

3. In October 2015, after the husband told the wife of his own research into kindergartens in her area and indeed, included a web link. The issue was raised again on the following day indicating the wife had been looking at the matter for some time. She told the husband of her visits to various places and had applied for enrolment at one.  This “application” for enrolment also took on a life of its own in the proceedings and in my view, unfairly so to the wife.

4. The husband said he would have liked the subject of which particular kindergarten to have been discussed before the enrolment.  His view was that he was being ignored in respect of decisions of importance relating to education.  The wife’s email advised that the kindergarten had accepted the child’s application but it also said:

   From my visits and research I have strong preference for ([F Kindergarten]).

   The husband submitted the wife had unilaterally acted to enrol the child but such an inference should not be drawn because of what happened next. 

5. Later in October 2015, the wife wrote saying that enrolment was “now in progress” but the kindergarten required money and needed paperwork completed.  Correspondence about ongoing fees followed but the husband raised the question of how those fees would fit into his child support obligations.  Even there, the wife can be seen to be conciliatory.  She said:

   If you’re intimating…that a shared cost…is a consideration I would do my very best to find a means to make a contribution.

6. At first blush, the date sequence would suggest that the wife was acting unilaterally but with the limited communication between the parents, careful consideration must be given to the way things progressed. I find that the wife was not enrolling unilaterally but indicating her preference and that negotiation as to the practicability followed. Any lack of consultation could not be read as deliberately excluding the husband.

Enrolment forms

1. Another matter to which the husband referred as did Ms S, was that the wife enrolled the child and excluded the husband as a contact point.

2. Ms S spoke to the director of the centre who told her she had not had “many opportunities to speak with” the husband. That created an impression for the kindergarten that the husband was restricted from engagement by court order.  The husband did not give that evidence.  Leaving aside the nature of this evidence, it was not supported by the husband’s own evidence [paragraphs 71 and 72 of his affidavit] in which he referred to his involvement with staff and his various attendances at the kindergarten. 

3. Ms S said the husband had some difficulties because he was “not on the record” of the kindergarten.  She could not remember precisely what was said by the kindergarten director other than there as a reference to two enrolment forms and the one prepared by the wife had her friend Mr B as the emergency contact but if that was so, there must have been a second enrolment form presumably prepared by the husband. How or why that came about is not clear as it does not appear in the husband’s evidence.

4. Ms S also said that she understood the kindergarten was told by the wife not to give news or information to the husband and everything had to go through the wife.  That did not sit comfortably with the husband’s email communications with the wife. One such email in February 2016, so just after the kindergarten year commenced, showed the wife berating the husband because he had requested that she provide information that the kindergarten had already been requested to provide direct to him.  To the extent that issue was raised to show that the wife was instructing the kindergarten not to deal with the husband, it has no weight. 

5. For the purposes of s 69ZT (2) of the Family Law Act 1975 (Cth) (“the Act”), I have given that particular evidence of Ms S no weight.

Toilet training

1. Despite the opinion of Ms S that the kindergarten was expressing their concern about the wife’s responsiveness to their suggestions about the parenting of the child, the only issue seemed to about his toilet-training. Ms S was probed about the extent of the discussions and was unable to expand. There was a view at the kindergarten that the wife listened to advice but did not follow it through with some sort of a plan. This could only have been about toileting because Ms S could not recall any other similar discussions. Again, for the purposes of s 69ZT(2) I have given that complaint no weight.

2. Importantly, notwithstanding it was a concern of Ms S, the husband did not see it as critical.  Ms S reported that the wife said that the child was toilet trained at home but not at kindergarten.  The wife attributed the kindergarten problem to the staff brushing the child off when he needed to go to the toilet. 

3. All of this was odd because when asked about toileting, the husband conceded that the child was not sent to him in nappies and whilst he was still “wetting” himself, he put him in “trainers” and “pull-ups” when the child was going to bed.  When pressed, the husband agreed there was communication “last summer” and agreement with the wife was reached on the issue.  Thus, nothing turns on the toilet training issue.

Illness

1. Returning to the husband’s Outline of Case document, the following appeared:

   [26]The father has attended medical appointments with the child and the mother.  The father has also offered his assistance to the mother to care for the child when the child is sick on numerous occasions.  

   The statement is unsupported by evidence.  The complaint could be one of two things. First, it might be seen as a complaint that during the husband’s time when the child was ill, he missed out on contact. The second proposition is that outside of those times, he had “on numerous occasions” offered whenever the child was ill to step in and care for him. Paragraphs [75]-[79] of the husband’s affidavit were the foundation for the assertion. The gravamen of the assertion seemed to be that the wife did not offer compensatory time when the child should have been with the husband but was ill.  The wife disputed that and she was called upon to produce any documents on the point.  She producing emails of December 2014, February 2015, March 2016 and April 2016.  This exposed not just illness but other matters including the husband requesting a cancellation of his time because of his sister’s wedding and the wife making compensatory arrangements.  Thus, to the extent that it is part of the husband’s case that the wife was uncooperative or, more importantly that the expert thought the wife a dictator and controller, again, this evidence did not support that assertion.

The wife’s unhappiness in Australia

1. There is no dispute that the wife is very unhappy in Australia; the husband concedes so.

2. Despite that concession, counsel for the husband submitted that the wife’s underlying premise of unhappiness in Australia and her lack of friends and family belies the fact that she has a number of such friends and acquaintances (whom he named).  I accept however that she is a shy and reserved person, a conclusion which may be drawn from the evidence of Ms S and the limited observations of the kindergarten director but also from my observations of her in court. That was consistent with the husband’s evidence in that he agreed that when they were together, the wife had difficulty making friends and was not a socialite. It was not disputed that she is anxious. Although no evidence was presented by the wife about treatment, she told Ms S she had attended a psychologist. She does not work outside of the home and her current social network includes a neighbour and Mr B who is the former manager where she worked. There is no evidence to suggest that her emotional position is likely to change.  I am satisfied she is not using her unhappiness as a lever to succeed in her desire to return to Taiwan; the problem is deeper than that.

3. The wife said that she missed her family and her culture. She described feeling “somewhat unsettled” after returning from the birth of her second child. As I have already indicated, little was said about that child whose father is a person with whom the wife has some contact. In the event of her return to Taiwan, that person would not be involved. The unhappiness she described (and accepted by the husband) is manifested in feeling isolated and very tired both “physically and emotionally”. She described the Taiwanese culture as being important because it was her identity. Her long association with Australia for which she said she was very grateful, did not ameliorate her desire to be part of her family. That evidence was not seriously challenged.

4. Ms S acknowledged that a move to Taiwan may well make a difference to the wife’s parenting.  The unusual dilemma here is that there is no evidence to indicate that the wife is not presently fulfilling all of the daily requirements and needs of the child. The husband did not argue to the contrary. However, her isolation and unhappiness are matters that I consider inevitably impact of her parenting and the evidence supporting that came from Ms S.

5. Ms S by her written report, described the wife as “emotionally driven” which gave the impression of desperation to return to Taiwan.  That was described by counsel for the husband as the wife being “committed to the cause” as she had been in Australia for 20 years.  I reject that.

6. It was submitted by the husband that the wife’s evidence about isolation, anxiety and lack of companionship flew in the face of a long relationship with Australia. Counsel for the husband submitted there were people to whom the wife could turn and he included the husband’s family amongst them. Excluding the husband’s family, that list is very limited. Counsel submitted that the husband’s family were warm and loving people albeit their relationship with the wife was “difficult at the moment”.  Having regard to the position adopted by the husband, it would be hard to expect the wife to see his family as close and loving friends. For example, the husband relied upon the evidence of his father who was not required for cross-examination. Mr G Au-Yong, over a 13 paragraphed affidavit, spoke effusively about the child but there was no mention of the wife. There was also no suggestion as to how, if at all, they have reached out to the wife. There was no evidence of credit to the wife for raising the child and her contribution to the grandchild they receive. A submission that the wife could turn to the husband’s family has little merit.

The second child

1. A further example which, on its face was unusual, concerned the child’s sibling.  It was submitted by the husband that the wife had no intention of letting him know any details beyond the bare fact that there as a child.  When cross-examined, the wife was reluctant to talk about that child.  A different name was given by the wife’s counsel in opening her case from not only the child’s proper name but the one that she uses on a daily basis.  No explanation was given for the distinction and I am not convinced that it matters. 

2. The wife’s response about the second child was that she thought that it was an irrelevant issue.  The husband knew of this child because there was the 2014 dispute about her returning to Taiwan for the birth. At that time, the husband endeavoured to ascertain details of the father and was unsuccessful. I ruled it was not then relevant. I remain of that view.

3. What the husband did not know, was the child’s sex, and name.  The wife’s reticence was said to show that she will only divulge details in relation to matters about which she is specifically ordered.  Curiously, there was very little in the husband’s affidavit about the second child.  Ms S said (paragraph [24]) that the wife was not “forthcoming” about the second child but her report did not indicate whether this was a serious problem.  She conceded that the wife was a culturally sensitive person or “she is who she is”. The relevance of the sibling was not really addressed.

4. There can be no doubt that the absence of detail causes difficulty. The husband would be unable to talk to the child about a child whose name he did not know. He noticed that the child made no mention of that child. Issues of what the two children did together could not be canvassed. The second child was never produced at changeover. There was undoubtedly a shroud of mystery about it. Questions were raised about what would happen to the siblings in the event of the wife’s untimely death. The wife had clearly not thought through any of these issues. The closeness of the sibling relationship would be something about which the husband had rights to know. Absent such information, the children would be split whenever the husband had the child. Whilst some of this mystery could be seen to reflect badly on the wife, I am conscious that I know little about her motivation but as best I can make a finding, it is linked to her view that the husband’s role in that child’s life is irrelevant. That is wrong. Having said that, I struggle to see how this mystery affects the relocation issue; my task is to see which of the proposals best meets the child’s needs.

The parties’ general proposals

The husband’s position

1. The husband’s formal proposal was directed to the child remaining in Australia. He proposed that:

   ·The parties have equal shared parental responsibility;

   ·J live with the wife in Australia;

   ·His time until the end of 2016 be:

   (a)On a two week cycle, from 4 pm Friday to 6 pm on Sunday in week one and from 4 pm on Thursday to 10 am on Friday in week two;

   (b)Five consecutive nights during the 2016 late year school holidays; and

   (c)Two lots of seven consecutive nights during the 2016/2017 school summer holidays.

   ·His time for 2017 be:

   (a)On the two week cycle, from 4 pm Friday to 10 am on Monday in week one and from 4 pm on Thursday to 10 am on Friday in week two;

   (b)During each school term holiday for seven consecutive nights; and

   (c)Two lots of nine consecutive nights during the 2017/2018 school summer holidays.

   ·His time after 1 January 2018 be:

   (a)On the two week cycle, from 4 pm Friday to 10 am on Monday in week one and from 4 pm on Wednesday to 10 am on Friday in week two;

   (b)For half of the school term and summer holidays;

   (c)12 noon on Christmas Day to 12 noon on Boxing Day in one year and then alternating to 12 noon on Christmas Eve to 12 noon on Christmas Day in the other years;

   (d)Time on both his and the child’s birthday, Father’s Day and a sharing of the Easter period on an alternating basis.

2. The husband also sought orders relating to changeovers and an allowance for the wife to travel to Taiwan each alternate year from 24 December to 1 January if she wanted to go there. Various orders were also sought about passports and that the wife be “permitted” to travel with the child for up to 9 weeks per year “at such dates and times as mutually agreed”. The use of the word “agreement” might seem odd in the context of allegations against the wife of stifling the development of the husband’s relationship with the child and refusing to communicate. Skype provisions were also suggested for the times when the child was overseas.

3. The husband sought specific orders for the wife to provide him with details of education and medical matters notwithstanding he also sought equal shared parental responsibility. That too is indicative of the lack of trust at the moment. If parties have equal shared parental responsibility, as he was seeking, s 65DAC sets out their respective obligations and one wonders why such orders would be needed.

4. The husband also sought an order that each party be at liberty to take the child to their choice of religious worship. I return to that below.

5. When pressed to clarify his proposed overnight time because of some uncertainty about how the child would currently cope, the husband said that he did not see “an issue” with the two consecutive nights (the 2016 and 2017 proposals) commencing in “mid-2017”. I accept the husband was genuinely endeavouring to convey what he believed the child could manage. He acknowledged that Ms S had said that the child was ready but his own position was different and, in my view, sensible. It must follow that both the 2016 and 2017 holiday proposals contemplating 7 or 9 consecutive nights are questionable on what is currently known about the child. That said, the wife’s proposals as to time are also problematic in the event of her relocation because she proposes long blocks of time in the very near future. When the husband was asked about the wife’s proposed structure, he said that he did not know whether it would work but he believed they would be able to work out something.

The wife’s position

1. The wife proposed that she would move to Taiwan if not by February 2017 then by August 2017 to coincide with the new school year there.  She suggested that the child would start his first year of school in Taiwan in September 2017 but until that move, the child would remain in kindergarten.

2. The wife sought sole parental responsibility.  She proposed that she would keep the husband informed of any significant health, education or welfare matters.  When challenged that she was seeking that order because she wanted to make decisions without the involvement of the husband, she pointed to the impracticability associated with “two guardians” having to sign forms and paper work.  When pressed as to that being overcome by electronic means, her response was that the husband might be “busy”.  When pressed further, she gave the example of emergency surgery.  She added that she would not make any determination without consultation.  It is a contentious issue and I propose to deal with it.  The reasoning of the wife is not a sufficient basis to justify a very significant departure from the statutory starting point that both parents have responsibility for the child.

3. The wife’s proposal was that if she went to Taiwan, the child spend time with the husband in Australia (he being responsible for the child’s airfares):

   (a)During the Taiwanese school holidays in February for two weeks with a cycle, building from, on the first occasion, two consecutive nights with an intervening night with the wife;  On the second occasion, six consecutive nights with one intervening night followed by seven consecutive nights, then on the third and successive occasions, for 14 consecutive days; and

   (b)In Australia in July/August to coincide with the Taiwanese school holidays with a similar cycle of building up time from, on the first occasion, over a period of four weeks with three nights with the husband followed by one night with the wife and then on the second occasion of four weeks duration leading to the third period and all periods thereafter, for seven consecutive weeks.

   (c)In Taiwan for up to two lots of two consecutive weeks per year on the same pattern as the January/February period;

   (d)For Skype or similar electronic communication for three times per week with the wife facilitating it (and when the child was in the father’s care, a reciprocal arrangement); and

   (e)Otherwise as agreed.

4. In addition to those orders, there were proposals that the passports for the child be held by the wife and for the orders of this court to be registered in Taiwan.

5. Pending relocation, the wife suggested that the child spend time with the husband on a two week cycle in which during the first week, he spend from 4.00pm to 6.00pm on Wednesdays followed by 6.00pm on Friday to 6.00pm on Saturday and in the second week, from 6.00pm on the Friday to 6.00pm on the Saturday and 1.00pm to 6.00pm on the Sunday and otherwise as agreed.

6. The second part of the dichotomy was if relocation did not occur.  The wife suggested that there be a build-up process which had the husband spending time with the child on the proposal relating to the pre-relocation period and then in 2017, alternate weekends from 6.00pm on Friday to 5.00pm on Sunday and every alternate Wednesday evening from 4.00pm until 6.00pm.  Once school commenced in 2018, the wife proposed a similar arrangement but with a build-up process during school holidays.  Then, in 2019, the same pattern would be followed except that the school holidays would be divided equally along with the wife proposing a sharing of special occasions and events.

The husband’s proposal if the child lives in Taiwan

1. The husband’s response was initially silent on the question of what should happen if the relocation occurred but his counsel quite properly suggested that if the wife moved to Taiwan with the child, the husband would adopt what was being suggested by her.  The difficulty with that concept lies in its feasibility.  It is important to acknowledge that there was no challenge to the position of either party in relation to financial matters. As such, the court should have no concern that they can afford to do what they are proposing.  The husband led unchallenged evidence about the costs of these trips but it was not suggested that finances would be an impediment. That includes the husband paying the child’s fares when he came to Australia.  I have concluded the husband could manage the cost. The wife will obviously have to bear her own costs of travel and accommodation in Australia.

What does the wife’s proposal of 13 weeks really mean?

1. If the relocation did not occur, the child would spend some time every week with the husband and soon, one half of all school holidays.  However, the half of the school holiday concept could not be undertaken by the husband without assistance because of his work commitments (depending upon what leave he ultimately receives in whatever position he ends up having). He will be reliant upon the wife or his family to assist him unless the child goes into some form of child care arrangement. 

2. If the move to Taiwan occurred, the husband agreed on what it would mean in terms of his movement and that of the child. In essence, it looks like this:

   ·The husband would go to Taiwan in December for the shutdown period of his work and take an amount of leave;

   ·The wife would bring the child to Australia in February;

   ·The husband would go to Taiwan for the Easter period;

   ·J would come to Australia for 7 weeks in July and August;

   ·The no physical-contact gap (depending on whether or not the husband took leave or rearranged his leave) would then be for the months of September to the end of December.

3. In his final address, counsel for the husband described the wife’s proposal as a “possibility” but submitted that the Court could not be sure that the 13 weeks would occur; he added that it “probably won’t”.  That submission was put in the context of an overall concept that if the wife returned to Taiwan, the husband’s family would be “marginalised”. He submitted that in addition, there were questions about whether the child would cope emotionally. Lengthy periods away from the husband would not likely be a problem based on the child’s past reactions and of course, there is skype. In respect of the former, I took the submission to be directed more to the logistical difficulties and the ability for the husband to be available rather than a suggestion that the wife could not be trusted to fulfil orders. Indeed, it was a criticism of the wife by Ms S that she only did what she was ordered to do.  I find that if the husband can get the time, the wife will co-operate. In addition, any difficulties that the husband may encounter in Taiwan should, on the evidence of the wife’s Taiwanese lawyer, not be a problem because the orders can be registered and enforced there.

The February trip

1. The wife would be obliged to bring the child to Australia in February or thereabouts depending upon the Taiwanese school holidays but the husband would probably not be able to take leave because he would want to keep that for his second trip to Taiwan.  As such, the child would be in Australia for the entire period of the Taiwanese holidays and the husband would do the best he could by continuing to work but regulating his hours.  He may be able to work from home on one day each week but he would still have the obligations to his employer to fulfil.  Depending on what employment he ends up maintaining, he may be able to “purchase” extra leave and spend more time in February with the child or, take some unpaid leave in the gap period of the second half of the year. All of these options are open depending on his employment.

2. The husband acknowledged that in the event that he was unable to care for the child during his periods of time, if his family was not able to do so, then he could call upon the wife to assist him and he expected she would be happy to do so.  He acknowledged that such an arrangement was sensible. 

3. The probable gap between trips to Australia and indeed physical contact with the child was contemplated by Ms S.  She did not say it would be disastrous or end the husband’s relationship with the child; she described it as a “challenge”.  She added that the younger the child, the greater the challenge.  In comparing proposals, that challenge is a large, but not insurmountable,  obstacle to overcome.  Skype was described by Ms S as a good way to maintain the relationship but that leads to the question raised by the husband as to whether the wife was co-operative in making that work.

Skype

1. The husband pointed to difficulties associated with past attempts at Skype including the child’s desire not to sit in front of the screen. The clear initial inference the court was asked to draw was that the wife was not compliant in ensuring that the child remained seated at the computer. There are two observations that can be made about that. First, the child is now older and communication will be easier because the husband and the child have a better relationship as a result of recent contact periods. The second is to ensure that the wife understands by an order, she is required not just to ensure that the child remains at the computer screen but also that he is actively participating with his father. That obligation is contained in the order by virtue of s 65DA(2) of the Act. The details are attached to the order. Under the heading of “Your Legal Obligations”, the following appears:

   You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders

2. The same provision however applies to the husband. He must also be proactive in retaining the child’s interest by being prepared with “props” and discussion topics that will engage the child. Communication between the husband and the wife is therefore critical so that the husband can know just the child is doing if he goes to Taiwan and what interests he has there.  As the child becomes older, that problem too should be easier to resolve. 

Other witnesses

1. The wife relied upon Ms H who is the owner of a business in Taiwan.  She is the wife’s aunt.  She has met the husband.  She provided information to the wife about international bilingual schools.  Those benefits are available for the child in Taiwan and if taken up, would mean that the child’s bilingual ability will be enhanced. 

2. Ms I is a lawyer in Taiwan practising in the area of family law.  He deposed to the fact that a final order of this court may be registered.  He also provided information that the husband would not need a visa if he travelled to Taiwan provided he had a passport and there was evidence of a return ticket to Australia.  All of that information was not therefore in dispute.

3. Mr L is the husband of Ms H and the uncle of the wife.  He set out his experience of living in Taiwan for 14 years.  His evidence was not challenged.  The evidence of Mr L makes clear that he enjoys Taiwan in circumstances where English is his first language and he does not speak or write Chinese.  His evidence was also directed to the subject of the husband’s difficulties in Taiwan in 2014 in terms of navigating the city but in my view that is not of any assistance.

4. Mr B filed an affidavit on behalf of the wife and was required for cross-examination.  He was the former manager for whom the wife worked.  He was required by the Independent Children’s Lawyer.  He described the wife as professional and having fulfilled an exemplary performance.  He now assists her and it was noticeable that he was attending court throughout the proceedings.  He has provided some of the wife’s litigation expenses. He described the wife as suffering from a lot of “wear and tear from emotional stress” during the latter part of her working environment and that her stress level has now worsened.  The wife confides in him and he noticed the absence of her family from Taiwan was contributing to her unhappiness. 

5. The husband too provided witnesses including Mr M who corroborated what the husband said about his 2014 trip to Taiwan and problems about the husband being required to sign documents. 

6. I have already mentioned Mr G Au-Yong, the husband’s father.  He is a church administrator.  He has resided in Australia for 20 years.  He and his wife have been married for 36 years and his evidence was not challenged.  He portrayed a picture of a loving and caring family who see the child as a part.  He was very complimentary of the husband’s role in the child’s life but again, none of that is controversial. His evidence is important because the child is entitled to have extended family participate in his life. Family is important as the paternal grandfather acknowledged. The wife’s proposals would limit that time by comparison with what is currently happening but whilst that is unfortunate, the child picks up the maternal family which has been largely missing to date. There seems to be no reason why the paternal family could not visit Taiwan.

Could the husband move to Taiwan?

1. A question often contemplated is whether the parent resisting relocation could possibly move to where the other parent wants to go. That was raised in this case. Counsel for the wife cross-examined the husband about international law firms but he said it would be difficult for him to find employment in Taiwan. In any event, he said that he would not go. Whilst one of the wife’s witnesses has successfully moved to live in Taiwan and had no difficulty adjusting, the distinction here is that the husband would potentially be alone. 

2. The husband is an Australian citizen and his extended family is here. His professional work is here and notwithstanding, he is at the lower rung of the hierarchy so leaving secure employment here would be unreasonable. Leaving aside emotional considerations, his desire to remain in Australia was logical with all of his family, friends, church and home here. 

3. Thus, a move to Taiwan for the husband is not practicable.

Expert evidence

Ms S

1. Ms S is the psychologist mentioned throughout these reasons. She has extensive experience as an expert witness in children’s matters. Although she described herself on the reports as a family consultant, her appointment was made by a series of orders in 2012, 2013 and ultimately 2014 pursuant to Rule 15.45(1) of the Family Law Rules 2004. She was required for cross-examination in relation to the evidence presented by the Independent Children’s Lawyer. Neither party disputed her expertise but, as I have already indicated, her opinion was challenged by the wife on the basis that it was not soundly based in the facts.

2. Her three reports were tendered in evidence. It was ultimately the following opinions that were challenged because they related to the wife’s desire to move to Taiwan.  Ms S said:

   [67]There is little if any benefit to [the child] if he relocates to Taiwan with his mother.  Whilst (the mother’s) emotional and psychological health may be one consideration, the limitations inherent in the mother’s parenting are likely to impact on [the child’s] capacity to develop to his full potential both socially and emotionally.  The nature of the father/son relationship will be compromised with few reassurances that (the mother) will foster it beyond the requirements of the law.

   [68](The mother’s) perception of, and attitude towards, the father and his role in [the child’s] life offers little confidence of her insight and capacity to embrace and foster the relationship from afar.  (The mother’s) parenting promotes [the child’s] dependence on her and she seems rigid and closed to advice that is offered…

   [69]While the court will determine the merits of the mother’s proposal to relocate, it is assessed that the costs currently outweigh the benefits.  There may be risks to [the child’s] development and there is no doubt that his relationship with his father will be compromised…

   Recommendations were then made. 

1. In the course of her third report, Ms S gave evidence some of which I have already mentioned.  She added the following:

   ·    J’s relationship with his father would not withstand an international move because of his age and thus far, so little time has occurred through his shared experience and engagement with his father such that it is not a solid relationship;

   ·    There is no ideal time for a relocation (of this nature) if the impediment is the developing relationship between father and child but if it had to occur, an extension of time would assist and has advantages which would have to be at least a year away;

   ·    J needs more time to develop a more solid based relationship and that needs to be established before a relocation occurs if he is to withstand that relocation because otherwise a child of aged four-five years cannot sustain that relationship like an older child can;

   ·    The crucial thing for the child is the mundane participation in activities on a weekly basis without which, that solid base would not be built and because of his age, the base is currently not there.

The 2012 report

1. In 2012, Ms S interviewed the parties when the separation was fresh and the husband harboured fears that the wife was going to return to Taiwan.  The wife desired to return to Taiwan and Ms S described her then as “desperate”.

2. Ms S described the wife as highly stressed and emotionally vulnerable – alone and isolated – had no-one to support her – felt abandoned and lost, and without her family, was unable to cope.

3. The wife’s position has never changed even though she backed away from the relocation concept once before. 

4. I earlier mentioned the early confused state of the parties’ intentions about their marriage. After the first visit to Ms S, the wife was described as having been happy and contented in her marriage, felt protected and safe and all her needs had been met.  The separation came as shock and she blamed herself for the demise of the marriage. 

5. That “blame” is indicative of how badly wrong things became. The complications after the child’s birth that delayed bringing him to Australia frustrated the husband.  From Ms S’s perspective, the wife saw the demise of the marriage as her fault.  Despite the wife’s gloomy emotional state in 2012, Ms S described her as a confident and capable mother to the child even to the point of over-protectiveness.  In 2012, relocation was the wife’s preferred solution but the expert opined that it was not possible if a secure relationship between the husband and the child was to be successfully formed.  She recommended relocation should not be considered before the child was about three years old.  As Ms S said, the wife had to recognise this was the “sacrifice” for her son. The wife did not press relocation.  The consideration of a move when the child was 3 years old was also not feasible (as Ms S later opined) because the relationship with the husband had still not been established. The 2012 and 2014 trips back to Taiwan would not have assisted.

The 2014 report

1. In the context of the wife’s application to travel to Taiwan for the birth of her second child in 2014, Ms S interviewed the parties again. She noted the husband’s lack of trust in the wife if she went to Taiwan.  This time the interview was conducted with an understanding that the wife had abandoned the return to Taiwan. Ms S noted the wife had “come to accept” the importance of the child having a relationship with the husband but as will be seen below, Ms S was critical about her view of the wife’s position on that subject in the 2016 report.  In between the 2012 and 2014 periods, the parties had undertaken counselling with an experienced counsellor but that did not resolve their communication conflict. Importantly, the 2012 description of the wife feeling isolated without the support of her family was repeated. Ms S noted the wife was anxious for which she had been attending a psychologist.  Thus, little had changed in the period after the previous observations of 2012.

The 2016 report

1. In 2016, the issue of relocation was again raised by the wife.  Ms S wrote that she presented as an anxious and emotionally fragile woman – socially isolated – closed – even paranoid tendencies. 

2. Ms S said it was unclear whether the wife was desperate or determined to relocate.  She said she was unsure whether the wife was being obstinate. I have trouble with that concept. Throughout the years both when the request to relocate was on the table and when it was not, the wife wanted to return to Taiwan. Throughout, her emotional state did not improve. The relationship between the parties did not improve. With the husband’s concession about the wife’s unhappiness, it is difficult to understand how the wife could be so described as determined in any critical sense. I accept that the wife was genuinely and emotionally desperate to go to Taiwan.

3. The husband’s assertions to Ms S about the wife were not flattering which was odd having regard to his concession about her happiness. Ms S conceded some of the things she had said about the wife were wrong. She conceded the phrase “paranoid tendencies” was incorrect and altered that to a “closed private person”.  That is consistent with the wife being quiet and reserved and having endured criticism in circumstances where she was unhappy and isolated. The criticisms in this report, like senior counsel’s accusations in 2014, could not have made it easier for the wife’s emotional state.

4. Ms S raised an issue about enmeshment between the wife and the child.  It was of concern because enmeshment does not encourage independence in the child.  Ms S acknowledged there would be an impact on the wife if she was unable to go and she may possibly feel like she was under siege.  She conceded that if the Court accepted that the wife had no friends and no family, it was not much wonder that she focussed as she did on the child.  Enmeshment was hardly surprising.

5. There is no challenge to the wife’s primary care position. If those issues lead to enmeshment and that is not good for the child, happiness of the wife becomes important. I find, after rejecting the husband’s position that the wife could extend her circle of friends, the best environment vis-a-vis the wife as a primary carer of the child, is in Taiwan. Absent change,  Ms S said:

   [69]There may be risks to [the child’s] development and there is no doubt that his relationship with his father will be compromised.

   She explained that to mean that with the child living predominantly with the wife, there was no broad social network particularly where the wife did not seek it.  She saw the involvement of the husband as operating in a broader circle (such as the church and family and local community) and that that provided a balance for the child but that exposure is, of necessity, limited having regard to the amount of time that the husband concedes is appropriate for the child.

Is the husband’s proposal better for the child than that of the wife?

1. Ms S said :

   [67]…the nature of the father/son relationship will be compromised with few reassurances that (the mother) will foster it beyond the requirements of the law. 

2. She clarified that to mean that the mother was abiding by the requirements of the law but reluctant to go beyond that.  The husband’s statements to Ms S clearly influenced and coloured her view of the wife.  The most obvious example was that she thought the wife was controlling the child’s time by which she meant that the wife was not sharing the child and thereby had control over his development.  She opined that the wife was resistant to the husband’s efforts to increase time.  I reject that description. 

3. Similarly, Ms S thought the wife was “embracing” a concept that there was little benefit to the child in being parented by a father based on her background of having had an absent father herself.  That factual concept came from the husband.  I have already found the wife’s father was a part of her life and any perception that the wife views a father role as irrelevant, is wrong. 

4. Thus, there is substance to the statement that the wife’s parenting may improve if she is in Taiwan. But that is only one aspect of this determination as the crucial question is what is in the child’s best interests?

5. Ms S said that relocation is, in most cases, not optimal.  Indeed, she described it as not ideal.  She conceded however that if the Court was satisfied that the wife would arrange for contact over 13 weeks per year, it was a good step towards overcoming the disadvantage.  In between times, Skype was described as quite an effective mechanism along with the husband going to Taiwan at other times.  As Ms S opined, it is really about maintaining the link and how that is done.  That obviously requires active co-operation by the wife and hence, it is understandable why the husband highlighted various incidents to show a lack thereof. Having rejected many of the husband’s assertions, I am able to find that the wife can and will co-operate. Ms S specifically mentioned provision of kindergarten drawings and exchanges of photos to ensure that the memory of the relationship and the experiences of the husband and the child were maintained. I accept that the wife will do that.

6. Thus, of Ms S’s opinions:

   (a)I reject the suggestion there is “little if any benefit” to the child if he moves to Taiwan. The wife’s emotional and psychological health is a significant consideration in this case because it impacts on her parenting;

   (b)I reject the opinion that the wife is unlikely to foster the father and son relationship beyond the requirements of the law. I find that the wife will be positive about a role for the husband;

   (c)I reject the opinion that the wife is rigid and closed to advice and indeed find that she does negotiate with the husband about the child and properly indicates her concerns about the child’s capacities to manage her absence;

   (d)I find the risks to the child’s development are speculative;

   (e)I agree entirely that the child’s relationship with the husband will change but I could not find that it will be compromised in the sense that it will not meet the best interest principle set out in s 60CC(2)(a); and

   (f)The evidence about how the child handles the absence of his father is indicated by the aftermath of the 2012 and 2014 trips and there is an apparent capacity for him to quickly pick up where he left off.

7. Ms S said there was no ideal time for a relocation but if it had to occur, an extension of time would assist and had advantages which would have to be at least a year away. The wife has indicated that if she could not go to start in February, she would want the child in school by August in Taiwan. the child was not ready for school in 2017 anyway so there is no reason for him to go before at least just before the school year began. By the middle of 2017, the child will be halfway between 5 and 6 years of age.

8. Before making the final comparison of proposals, there was a simmering issue of religion that needs to be addressed.

religion

1. The wife’s proposal transparently excluded times (and special occasions) when the husband would take the child to church.  Little was said about what formed her view. There were no injunctive orders sought by the wife.

2. Curiously, the husband raised the issue.  He sought a specific order that:

   …Failing agreement between the parties on religion, each party be at liberty to bring the child to a church or religious place of worship of their choosing.

3. The husband asserted that he had sought the wife’s consent to being able to take the child to church but the wife declined.  In the hearing, the wife maintained dislike for the husband’s church because of her belief that attendance for the child amounted to indoctrination.  She pointed to the group’s singing, flag waving, gestations, healing service and proselytising.

4. Despite having experienced the husband’s religious belief, the wife was content for the husband to have parental responsibility about important decisions in the child’s life and to spend significant time with him during which (if he so desired) he could proselytise or indoctrinate his son.  Her concern was about exposure of the child to activities in which she had no desire to be involved.

5. Unlike the wife, the husband is an enthusiastic Christian who sees it as an important part of his life and not just a church-based activity. He was questioned about things he had written which, to an outsider, looked clearly like proselytising. But, as the husband observed, he read Christian stories to the child and talked in age-appropriate language. There was no evidence of distress or confusion in the child but then again, he has not been to the church recently to experience what concerned the wife. As I have maintained throughout these reasons, I found both parents very good in respect of what they wanted to achieve for the child. It must follow that if the husband was with the child and did not see any psychological or emotional risk to him at these activities, there should not be any concern.

6. Religion is what is described in s 4 of the Act as a major long term issue.

7. Parental responsibility is defined in s 61B to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children and s 61C dictates that each parent has parental responsibility until a child turns 18 years of age.  Thus, each parent has not only the authority but also the responsibility to make a decision about religion if it affects the child’s care, welfare or development.  The husband sees it as important to teach the child Christian values.

8. Because of s 61B and s 61C, the court has no role until a parenting order affects or alters the statutory responsibilities (s 61C(3)).

9. The role of the court is activated if an order is made affecting the parents’ statutory rights because s 65DAC requires that if a parenting order provides for a sharing of parental responsibility, the exercise of which requires a decision about religion, the order is taken to require that decision to be made jointly including through a process of consultation. A problem only arises if there is no agreement. The Act is silent on what happens next.

10. There has been a form of consultation here albeit desultory, but it resulted in the husband abiding by the wife’s wishes.  If there was further litigation, it could only be on the basis of overt distress for the child as distinct from the wife’s objections based on an argument of indoctrination because any such determination must focus on the best interests of the child.

11. It is not for a court to determine every issue of child raising; the focus must always be on the child’s best interests.  Justifiable interference with parental rights could only arise where there was a discernible adverse impact such as confusion, night terrors or the child’s peer relationships being put at risk because of church or religious activity involvement.  There was no evidence of that nature here.

12. After discussion with counsel during the hearing, the issue was not addressed again.  The wife did not (and does not) directly seek injunctive orders.  It was not raised by any party in final submission. In the circumstances, there being no indication from the wife as to the manifestation of her concerns about the care, welfare or development of the child, the issue falls to parental responsibility.  I decline to make the order sought by the husband.

The Independent Children’s Lawyer’s position

1. When the case began in August 2016, the Independent Children’s Lawyer’s “preliminary” position was that the child should stay in Australia and spend time with the husband both during weekdays and on alternate weekends but otherwise be able to travel to Taiwan each year.  By the end of the trial in October 2016, the Independent Children’s Lawyer had changed to a position in which the wife should be able to relocate to Taiwan with the child but not until August 2018.  This delay was said to enable the “developing relationship” to continue.  For the reasons outlined above, I doubt that selecting a date such as August 2018 has any evidentiary foundation if it is thought that by that time, the relationship will no longer “erode”.

Parental responsibility

1. Counsel for the Independent Children’s Lawyer proposed that an order should be made for equal shared parental responsibility. The husband’s position had not changed. He also sought equal shared parental responsibility.  It was the wife who sought the different order.

2. By law, both parents have parental responsibility for the child (s 61C) until a court orders otherwise. S 61DA provides that when making a parenting order, the court must apply the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. The importance of the point lies in the legislature’s use of the word “equal”. Submissions did not address the complexities of that and it is not necessary that I deal with it now.

3. Section 61DA(1) provides that the presumption of equal shared parental responsibility does not apply in two relevant situations.  The first relates to abuse or family violence neither of which allegation applies here.  The second situation arises where a court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.  As I have already observed, the wife’s basis for seeking to depart from that equality has no merit. Her justification lay in matters of convenience. Parenting is often inconvenient but decisions can still be made; the parents have to make a greater effort than they might otherwise if they are separated and if separated by the tyranny of distance, the efforts have to be greater.

4. An order for equal shared parental responsibility would normally trigger the court’s mandatory attention to the provisions of s 65DAA of the Act. The wife raised medical and education issues (as one group) of circumstances where she and the husband could not discuss things but the evidence supports a conclusion that they do and generally reach agreement. Again, the problem is one of inconvenience. That is not a basis to remove a parental right given by law where someone genuinely desires to exercise those rights and has shown a capability to do so. I find that it is in the child’s best interests for his parents to have responsibility for those decisions. The second group concerns religious upbringing. The parties probably cannot reach agreement about what the child should be exposed to. The fact that parents agree to disagree is not a basis for the Court to step in absent some evidence that relates to the best interests of a child. Parents can, and will, have different philosophical views about raising their children. The Court should not intervene unless the evidence shows that by each parent doing their own philosophical thing, the child’s welfare is at risk. Fear of indoctrination as distinct from positive evidence of harm is not a justification for interference.

5. The focus then of s 65DAA is on time and it was not suggested in this case by the husband that he was currently seeking equal time or even significant and substantial time with the child within the meaning of the Act albeit that he desires that in the future. Based on all of those matters, it is unnecessary for me to consider s 65DAA further.

6. There is no reason why the parties should not have equal shared parental responsibility.

What about immediate time increases?

1. Because I intend to delay the departure until 2017 to coincide with the commencement of the new school year in Taiwan, it is important to determine the question of interim time.

2. Despite the husband’s concern about pressing too quickly with increases, it was noticeable that the wife’s outline of case document proposed 2 consecutive nights by February 2017. Indeed, had the relocation occurred immediately, she was contemplating block periods with two consecutive nights punctuated by a night back with her. If the logic behind that was to give reassurance to the child that his mother had not disappeared, it was still a lot of time for the child to process in a short few days. Thus, I can presume that the wife thought she could manage the quick rotations. There is no logical reason that I can think of why some form of weekly routine where the gaps are longer than the wife had proposed ought not also work well for the child.

1. Whilst many parents of children attending school or kindergarten relish weekend time, it has not been suggested that the wife has any particular commitments on those days whereas, the husband is committed to employment during weekdays. Until the wife moves to Taiwan, there is no reason why weekend time cannot be with the husband.

2. The husband has made clear his desire to take the child to church and I have presumed that Christmas is such an occasion. In addition, I have also understood that family gatherings are of significance. Accordingly, I have made orders that factor in the husband’s future difficulties of being away from his family at Christmas until the orders enable him to bring the child here for the relatively short period time.

3. Similarly, in the future, my understanding is that Taiwan does not have Christmas holidays other than discrete days and accordingly, the husband will have to factor in the child’s school attendances when he travels there. To the extent that it is necessary to say so, I cannot imagine that a few extra days away from school at the child’s age for the next few years will cause problems if the husband wanted to return to Australia with him.

4. I have not made kindergarten orders and the like for 2017 on the basis that the parties should be able to work those out. If they cannot, it is my intention to give the husband as much quality time by weekends as possible and to enable him to say as much leave as he can for the future travel to Taiwan.

An approach to the determination

1. The overall task is to evaluate each of the proposals advanced (A v A (2000) FLC 93-035, U v U (2012) 211 CLR 238, Kopel and Ferro [2016] FamCAFC 202) in the context of best interests principles.

2. The court is obliged to determine best interests as the paramount, but not sole, consideration, in determining what parenting orders should be made.  That said, a parent’s right of freedom of movement must give way to the interests of a child (U v U (supra) per Gummow and Callinan JJ).

3. The future needs of the child are guided by the principles of s 60B. Those rights of the child are clearly important here. Ultimately, the orders must be determined based on the findings which are based around statutory best interests’ principles.

Predicting the future

1. One obvious difficulty is the element of prediction as to the impact on the child of any relocation or its converse.  As Gummow and Callinan JJ said in U v U (supra):

   Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ.  The exercise of looking to, and making orders for the future, is peculiarly a discretionary one.

2. Some comfort in this case can be drawn from the fact that the wife has always returned from Taiwan upon complying with orders, has not been challenged about her financial prospects in Taiwan and, with many years of experience in Australia, has knowledge of this country such that returning would not be expected to be daunting. In addition, the orders can be registered in Taiwan.

3. On the other hand, whilst the husband articulates the difficulties of being in Taiwan, he can do it and I accept the wife’s evidence that limited local language skills may be an inconvenience but certainly not an impediment such as to make staying there for any length of time, impossible.  There are no known visa difficulties.

4. The predictive nature of the assessment requires contemplation of what the husband described as the erosion of his relationship with the child. The way Part VII of the Act deals with that is from the positive perspective. It is an obligation of the Court to consider what orders will enable the child to enjoy the benefits of a meaningful relationship with both parents. The husband’s case therefore is that if the child goes to Taiwan, he will no longer benefit from a meaningful relationship with his father.

5. In contemplating what the expression “meaningful relationship” means,  the Full Court in McCall and Clark (2009) FLC 93-405, said that it was logical to give the words their meaning in the context of s 60B and s 60CC(2)(a). The Full Court referred to the Macquarie Dictionary definition of meaningful as “Full of meaning, significant”. “Significant” is defined as “important; of consequence”.

6. The Shorter Oxford English Dictionary defines “meaningful” as “full of meaning or expression; significant”.  “Significant” is defined as “having or conveying meaning; expressive; suggesting or implying deeper or unstated meaning…important, notable; consequential”.

7. All of those definitions are helpful here.  The husband’s relationship with the child is a close and loving one which fits comfortably into all of those dictionary meanings. But so too and in a different way, the child benefits from the relationship with his mother. That relationship is presently most important of all because he is dependent upon, and attached to, her. Each of these relationships is important and they are to be assessed and weighed in the context of the parties’ proposals.

8. In Mazorski and Albright [2007] 37 Fam LR 518, Brown J referred to meaningful relationship as being synonymous with “significant”. Her Honour said in turn that that was generally used as a synonym for “important” or “of consequence”. I have no doubt the relationship between the child and his father is significant but it cannot presently be of more significance than that which he has with his mother. Whilst the court must take a prospective view, I am satisfied that the child is going to be dependent on his mother for a number of years from now. within relation to the relationship between the husband and the child, that is important but will grow and reduce the dependence on the wife if the proposals are carried into effect. I readily accept that the wife’s proposal is, as Ms S described, not ideal but that is not the test.

9. Kay J in Godfrey and Sanders [2007] FamCA 102 made the observation which was later endorsed by the court in McCall:

   Even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship not an optimal relationship.

10. In McCall (supra), the Full Court contemplated an interpretation of s 60CC(2)(a) in which there was an assumption that there was a benefit to all children in having a meaningful relationship with both of their parents.  That interpretation was rejected on the basis that had the legislature intended to elevate it to a presumption, it would have said so in clear and unambiguous language.  In those circumstances, the Full Court concluded that the appropriate interpretation of meaningful relationship was that set out by Brown J in Mazorski (supra).  Combined with the various definitions, it is clear that the court should aspire to achieving a relationship for the child in which his father is involved in such a way that he becomes an important figure and is of consequence to the child’s development.  I find that the proposal of the wife if implemented does achieve those goals.

11. Ms S wrote that in the child’s formative years, the change contemplated by the wife, would “significantly change the trajectory of his development”.  In her oral evidence, Ms S expanded on that to say that the existing relationship could not withstand a move because it was not solid which meant that the child was too young to sustain what had already developed.  For the reasons set out earlier, I do not accept that opinion. The important question is whether, if the proposal of the 13 week structure plus electronic communication was implemented when the child is about five and a half, would he benefit more than if he remained here in Australia with an unhappy and isolated parent such that his socialisation may suffer. In my view, the wife’s proposal provides the answer.

12. The benefits of a meaningful relationship for the child include continuing his bilingual skills. They include understanding and participating in his father’s  religious views. They include being able to immediately recognise the husband as his father so that security and comfort is immediately there when in going into his company whether in Taiwan or in Australia  The wife’s proposal meets those objectives.

13. From the social scientist’s perspective, Ms S thought that whilst the child could communicate “and stay connected”, from a distance, “a significant part of the social capital” would be absent from his early life.  That depends on whether the “social capital” includes contact with the husband and his family.  That is dependent upon the wife being positive and dedicated to maintaining that relationship.  Whilst Ms S was of the view that the wife would not, I reject that because it was an opinion founded predominantly on a view that the wife was controlling and unwilling to support the relationship.

14. J also has the right to a relationship with persons who are significant in his life. That must include both his paternal and maternal families. It is hard to predict how he would associate with the paternal family if he returned from time to time but the husband will be present and the child is an adaptable child. 

Bests interests

1. The Act requires consideration of “additional considerations”. They can be grouped in this case.

2. Section 60CC(3)(a) relates to the views of a child. Unsurprisingly, with the child’s age, this whole concept of relationships and where he lives remains a mystery. His views could not assist.

3. Section 60CC (3)(b), (c), (ca), (f) and (i) generally concern parental capacity and responsibility as well as the extent to which the parents have taken opportunities to participate and encourage participation in the child’s life and fulfilled maintenance obligations. Each has the capacity to provide for the child’s emotional and intellectual needs; each has a responsible attitude to the responsibilities of parenthood.   That can be seen in the deference the husband shows for the wife’s decisions about the child.

4. Each parent has different levels of skills in respect of the child’s parenting. The husband has always wanted more time but as Ms S observed in 2012, he did not have the skills to care for a baby. He has developed those skills slowly to the point that the child is happy and comfortable in his care. That is indicative of responsible parenting. The wife does not say otherwise. Thus, in a comparison of proposals, it is important to ensure that that does not change. As I have already found, there is no reason to accept that it will. What needs to improve and quickly, is the parental communication relationship.

5. Section 60CC(3)(d) and (e) are extremely important here. They consider the effect on the child of being away from a parent as well as look at the practicability of any contact arrangement. Whilst the parents may not agree on the major relocation issue, the husband has certainly taken the relationship with the child slowly and it has been successful in avoiding adverse effects from separation from the wife.

6. Comparing the proposals in this context, a number of matters can be said. First, there is no impracticability about the respective proposals. Secondly, I am satisfied that the constant Skype communication and discussion about face to face visits will ensure that the relationship is not diminished even if it is changed.

7. The wife’s proposal will meet the child’s needs. The husband’s proposal is not as good because it does not solve the isolation and unhappiness of the wife which impacts on the child.

8. In reality, prediction about how the child will “cope” with or “manage” such a significant change can be gauged only by reference to history. To date, whilst the husband might argue otherwise, the relationship with the child has been steady and successful. Nothing about that development would suggest that the wife thwarted it. On the contrary, the husband was sensible to allow the child to ease into his lifestyle. That relationship is still in the early stages. Over the ensuing months that should be cemented including by some holiday periods that will test out the regime that the wife proposes in the years ahead. In my judgment, of the two proposals, a move to Taiwan is in the child’s best interests.

What orders should be made?

1. Because of the age of the child and his lack of time away from his mother, I propose to set the outer limits of contact time and then allow the parties the flexibility to advance from there. I have done so on the basis of accepting that the wife is supportive of advancing the husband’s time. If I am proved wrong about that, further applications can then be made. The time limits that I have set have been determined on the basis of what Ms S and the husband both consider the child can manage with that element of prediction so unfortunately necessary in cases involving young children such as the child.

2. I also make clear that I have not made the plethora of other orders sought by the husband and indeed by the wife relating to exchanging of information on the basis that those are obligations arising from their respective roles as parents who have equal shared parental responsibility. One such order relates to passports. There is no longer any need for the court to be involved nor for the wife not to have that responsibility of caring for them.

3. Finally, the wife sought orders that the husband pay for the costs of the child’s travel. I have no evidence of what that means. My understanding from experience is that the child could not travel unaccompanied but because of his age, there is limited if any, costs to the wife. The order is drafted accordingly.

4. It is also unnecessary in my view to deal with birthdays and the Mothers/Fathers Days issues. If the parties do not negotiate those amongst themselves, it will further entrench their lack of trust and mean that neither will provide any quid pro quo. That would be sad for the child but I make it clear that I have determined this on the opposite bases, namely that they can work together notwithstanding the assertion that the wife will only do what is specifically ordered. I have found that is not the case but this will test the parties resolve. Again, if such a dispute arises, the courts will have to be again engaged.

5. I otherwise dismiss all outstanding applications.

I certify that the preceding Two Hundred and Nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 November 2016.

Associate: 

Date:  29 November 2016