Yu & Casali
[2022] FedCFamC2F 1371
Federal Circuit and Family Court of Australia
(DIVISION 2)
Yu & Casali [2022] FedCFamC2F 1371
File number(s): MLC 14067 of 2021 Judgment of: JUDGE GLASS Date of judgment: 14 October 2022 Catchwords: FAMILY LAW – PARENTING – RELOCATION – where mother seeks to relocate to Queensland with child age 6 – whether it is better for child to live with the mother in Queensland or with the father in Melbourne – evaluation of competing proposals – where the mother has been the predominant care giver in child’s life – where the prospect of the father relocating is not explored – where the right of freedom of mobility ought defer to the paramount considerations of child’s best interest to warrant interference Legislation: Family Law Act 1975 (Cth) ss 60CC, 60B, 60CA, 61DA, 65DAA, 65DAC
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Cases cited: Adamson & Adamson (2014) FLC 93-622
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
AMS v AIF (1999) 199 CLR 160
Asher & Wilkinson (2020) FLC 93-945
Browne & Dunn (1894) 6 R. 67
Champness & Hanson (2009) FLC 93-407
Craven v Craven (1976) FLC 90-049
D & SV (2003) FLC 93-137
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Saunders [2007] FamCA 102
Isles & Nelissen (2022) FLC 94-092
Jurchenko & Foster (2014) FLC 93-598
Keskin & Keskin & Anor (2019) FLC 93-932
LC v TC (1998) FLC 92-803
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC 93-513
Sampson & Hartnett (No 10) (2007) FLC 93-350
Searson & Searson (2017) FLC 93-788
Jones v Dunkel (1959) 101 CLR 298
Taylor & Barker (2007) FLC 93-345
Tibb & Sheen (2018) 58 Fam LR 351
U v U (2002) 211 CLR 238
Ulster & Viney (2016) FLC 93-722
Wagstaff & Wagstaff (2022) FLC 94-098
Yarrow & Yarrow [2022] FedCFamC1A 135
Division: Division 2 Family Law Number of paragraphs: 130 Date of last submission/s: 5 October 2022 Date of hearing: 3 – 5 October 2022 Place: Melbourne Counsel for the Applicant: Ms Paterson Solicitor for the Applicant: Taussig Cherrie Fildes Counsel for the Respondent: Ms Mallet Solicitor for the Respondent: Marshalls+Dent+Wilmoth ORDERS
MLC 14067 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YU
Applicant
AND: MR CASALI
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
14 October 2022
THE COURT ORDERS THAT:
1.The Mother and Father have equal shared parental responsibility for X born in 2016.
2.X live with the Mother in City B, Queensland.
3.Upon X relocating to live with the Mother in City B, if the Father lives interstate from X, X spend time with the Father at times to be agreed in writing and failing agreement:
(a)during school terms (as timetabled by the school X attends):
(i)in Melbourne, for an extended weekend of up to four consecutive nights each month in months that X does not spend a week or more of school holiday time with the Father pursuant to order 3(b):
A.on dates to be nominated by the Father in writing with not less than thirty (30) days prior to the time commencing; and
B.where practicable to be nominated by the Father to coincide with non school days for X and public holidays in Queensland and/or Victoria;
(ii)in City B, for any odd numbered weekends of the year upon the Father’s election, from the conclusion of school on Friday (or 3:30pm if X is not attending school) until the commencement of school on Monday (or 9:00am if X is not attending school), such time to be extended:
A.if Friday is a public holiday or pupil free day, to commence from the conclusion of school on Thursday; and
B.if Monday is a public holiday or pupil free day, to conclude at the commencement of school on Tuesday;
conditional upon, unless otherwise agreed in writing:
C.the father nominating the dates in writing with not less than fourteen (14) days prior to the time commencing; and
D.the Father facilitating X attending all activities and engagements already arranged prior to his nomination pursuant to order 3(a)(ii)(C) and ensuring X completes any required homework,
E.the time nominated by the Father pursuant to orders 3(a)(i) and 3(a)(ii) must not conflict with X’s time with the Mother for special occasions pursuant to Order 5; and
(b)during school holidays (being the school holiday periods as timetabled by the school X attends):
(i)During the long summer school holidays in December 2022 / January 2023:
A.With the Father from the conclusion of school (or 3:30pm if X is not at school) on the last day of term to 7:00pm on 23 December 2022;
B.With the Mother from 7:00pm on 23 December to 7:00pm on 24 December 2022 (to celebrate Christmas);
C.With the Father from 7:00pm on 24 December 2022 to 9:00am to 3 January 2023 (including Christmas);
D.With the Mother from 9:00am on 3 January 2023 to 9:00am 20 January 2023;
E.With the Father from 9:00am 20 January 2023 to 9:00am 27 January 2023; and
F.With the Mother from 9:00am on 27 January 2023, until the commencement of school on the first day of term 1 in 2023;
(ii)thereafter, for one half of the all school holidays periods at times to be agreed between the parties and failing agreement:
A.the second half of holiday periods commencing in even numbered years, concluding at 5:00pm on the second penultimate day of the school holidays; and
B.the first half of the holiday periods commencing in odd numbered years, commencing from the conclusion of school on the last day of term.
4.If both parties live in the same city as X (for example, if the Father relocates to live in City B or if the Mother returns to live in Melbourne with X), X live with the Mother and spend time with the Father at times to be agreed in writing and failing agreement:
(a)during school terms (as timetabled by the school X attends):
(i)for the first two school terms:
A.in the first week of term and each alternate weekend thereafter, from the conclusion of school on Friday (or 3:30pm if X is not attending school) until the commencement of school on Monday (or 9:00am if X is not attending school), such time to be extended:
(1)if Friday is a public holiday or pupil free day, to commence from the conclusion of school on Thursday; and
(2)if Monday is a public holiday or pupil free day, to conclude at the commencement of school on Tuesday; and
B.in the second week of term and each alternate weekend thereafter, from the conclusion of school on Thursday (or 3:30pm if X is not attending school) until the commencement of school on Friday (or 9:00am if X is not attending school); and
(ii)after the first two school terms:
A.in the first week of term and each alternate weekend thereafter, from the conclusion of school on Thursday (or 3:30pm if X is not attending school) until the commencement of school on Monday (or 9:00am if X is not attending school, such time to be extended if Monday is a public holiday or pupil free day, to conclude at the commencement of school on Tuesday (or 9:00am if X is not attending school); and
B.in the second week of term and each alternate weekend thereafter, from the conclusion of school on Thursday (or 3:30pm if X is not attending school) until the commencement of school on Friday (or 9:00am if X is not attending school); and
(b)during school holidays from 2023 (being the school holiday periods as timetabled by the school X attends), including the long summer holidays:
(i)in odd numbered years, for the second half of the holidays, concluding at 5:00pm on the second last day of the school holidays; and
(ii)in even numbered years, for the first half of the holidays, commencing from the conclusion of school on the last day of term.
5.X spend time with each parent for special occasions at times to be agreed and failing agreement, as follows:
(a)for Christmas, from 2023:
(i)in even numbered years, with the Father from 3.00pm Christmas Eve until 7.00pm Christmas Day, and with the Mother from 7.00pm Christmas Day until 7.00pm Boxing Day; and
(ii)in odd numbered years, with the Mother from 3.00pm Christmas Eve until 7.00pm Christmas Day, and with the Father from 7.00pm Christmas Day until 7.00pm Boxing Day.
(b)on X’s birthday:
(i)with the Father from the conclusion of school (or 2:00pm if falling on a weekend or non-school day) to 7:00pm if X would otherwise be in the Mother’s care at that time;
(ii)with the Mother from the conclusion of school (or 2:00pm if falling on a weekend or non-school day) to 7:00pm if X would otherwise be in the Father’s care at the time;
(c)with the Father, on the Father’s birthday, from the conclusion of school (or 2:00pm if falling on a weekend or non-school day) to 7:00pm.
(d)with the Mother, on the Mother’s birthday, from the conclusion of school (or 2:00pm if falling on a weekend or non-school day) to 7:00pm.
(e)for Father’s Day weekend with the Father, from the conclusion of school on Friday (or if Friday is a non-school day, from the conclusion of school on Thursday) until the commencement of school on Monday (or if Monday is a non-school day, until the commencement of school on Tuesday) and the Father be permitted to travel interstate with X for Father’s Day weekend; and
(f)for Mother’s Day weekend with the Mother, from the conclusion of school on Friday (or if Friday is a non-school day, from the conclusion of school on Thursday) until the commencement of school on Monday (or if Monday is a non-school day, until the commencement of school on Tuesday) and the Mother be permitted to travel interstate with X for Mother’s Day weekend,
and unless otherwise agreed in writing:
(g)each parent provide notice of at least 30 days of their intention for X to spend time with them for these special occasions;
(h)such time take place in the city in which X is being cared for if not for this Order unless otherwise specified; and
(i)the parent responsible for X’s care during these periods is not permitted to travel with X away from their home city for these special occasions unless the other parent has not provided notice pursuant to Order 5(g) or has advised they don’t intend for X to spend a particular occasion with them.
6.For the purpose of X moving between the care of his parents, unless otherwise specified in these Orders or agreed in writing:
(a)for the purpose of Order 3:
(i)where X’s time with the Father takes place in City B:
A.changeover take place to and from X’s school where practicable;
B.the Father or his agent otherwise collect X from the Mother’s residence at the commencement of time and return him to her residence at the conclusion of his time with him;
C.the Father meet the cost of his travel and accommodation for X to spend time with him in City B IT BEING NOTED the Mother has agreed to use her best endeavours to share with the Father any opportunities she has for discounted accommodation in City B or use of a motor vehicle through her employment, provided the Father provides her with sufficient notice of his plans to travel to City B, returns the vehicle and accommodation in the same condition as provided to him and meets the cost of fuel used by him and of any damage caused to the vehicle or accommodation during his use;
D.the Father notify the Mother at least seven days prior to travel of his flight details and thereafter of any changes to scheduled flights and estimated times for changeover; and
(ii)where X’s time with the Father takes place in Melbourne, changeover take place at Melbourne airport and:
A.the Mother book and pay for X’s economy air travel upon receiving the Father’s nomination pursuant to order 3(a)(ii)(C);
B.the Mother notify the Father at least fourteen days prior to travel of X’s flight details and thereafter of any changes to scheduled flights;
C.the Mother or her agent accompany X on both legs of travel between City B and Melbourne, at her expense;
D.X be permitted to fly unaccompanied upon attaining the age of 13 years (or such other age as the parties may agree in writing); and
E.the Father deliver X to the Mother’s care at Melbourne airport at least 90 minutes prior to X’s flights to City B in the event he is late and X misses his flight, the Father compensate the Mother for any additional costs incurred by her within 14 days; and
(b)for the purpose of Order 5, the parent with whom X is spending time for each special occasion collect X from and return X to the home of the other parent and any travel be at their own expense.
7.Each parent facilitate X communicating with the other parent at times he is in their care:
(a)by FaceTime, telephone or other electronic means as may be initiated by the other parent, each Tuesday, Thursday and Sunday between 7:00pm and 7:30pm, or as may otherwise be agreed in writing; and
(b)at all reasonable times and by such means (FaceTime, telephone, text message or other electronic means) as may be requested by X.
8.Unless otherwise agreed in writing, the Mother and Father communicate with one another in relation to X by email save for when urgent communication is required which is to be by text message and in the case of an emergency by telephone.
9.Each of the Mother and the Father send to the other a written ‘handover’ message by email on a weekly basis (unless X has not spent time with them the previous week), providing a summary of relevant information with respect to X, under the following headings:
(a)activities;
(b)homework;
(c)schooling;
(d)social and friendship issues;
(e)medical/psychological needs;
(f)behaviour;
(g)social activities and engagements, and
(h)general presentation.
10.Each of the Mother and the Father keep each other informed as to their residential address, postal address, mobile (and landline if applicable) telephone numbers and preferred email addresses and forthwith inform the other of any anticipated or actual change in those details.
11.Each of the Father and the Mother:
(a)immediately (as soon as practicable) notify the other of any medical emergency, serious illness or injury experienced by X requiring medical treatment or hospitalisation while he is in their care respectively;
(b)forthwith notify the other of any medical, dental or other health practitioner with whom X is scheduled to consult with or has consulted with (providing their name, practice and contact details) and authorise the other parent to make all reasonable enquiries of such practitioner(s) in respect of matters concerning X's health;
(c)forthwith provide the other with copies of any reports or records provided to them respectively by medical, dental or other health professional attended by X;
(d)be and are hereby authorised to provide a copy of these Orders to any medical, dental or other health professional attended by X; and
(e)this Order shall, without more, act as authority to X's medical practitioners (including counsellors and psychologists) to consult with each party and provide to them (at the requesting party's expense) information about X's medical condition, treatment and copies of medical records and reports.
12.In the event the parties are unable to agree on X’s school enrolment, both parties forthwith do all acts and things necessary to enrol X at City B School.
13.Each of the Father and the Mother:
(a)are hereby authorised to:
(i)receive information, notices, reports, class lists and family contact details and photographs directly from any school and/or provider of before and after school care and extracurricular and sporting activities attended by X;
(ii)attend all events parents are invited to and permitted to attend, including but not limited to parent-teacher interviews, open days, concerts, and like events; and
(iii)provide a copy of these Orders to any school and/or provider of before and after school care and extracurricular activities or sporting activities attended by X; and
(b)keep the other informed at all times of any significant schooling, social or extracurricular events for X which have been brought to their individual attention (and not available through the school's shared parent communications), including but not limited to school concerts and awards nights and shall provide the other with information regarding such events as soon as practicable once it comes to hand.
14.Each parent inform the other, as soon as practicable, in the event X is absent from school and the reason for his absence.
15.Each of the Mother and the Father:
(a)be responsible for supervising and supporting X to complete all required school tasks, homework and reading at times he is in their care respectively, unless otherwise agreed;
(b)both parents use their best endeavours to ensure that X (unless unwell or otherwise agreed in writing) attends school and all agreed current extra-curricular activities during his time with them and in the event that they are unable to do so they provide the other parent with the first option to do so.
16.Should X miss school to spend time with the Father, pursuant to Order 3(a)(i), the Mother liaise with X’s teachers and ensure he undertaken any missed schoolwork and arrange tutoring for X if recommended by X’s teacher/coordinator.
17.In the event the Mother or Father plan to travel interstate with X at times he is in their care (save for in respect of his regular travel between Melbourne and City B), unless otherwise agreed in writing:
(a)the parent intending to travel with X advise the other parent in writing, in general terms, of their intended travel plans as soon as practicable once those plans are known but no less than five days prior to travel; and
(b)no less than three days prior to travel, the parent travelling with X provide the other parent with details for X's travel, including precise dates of travel and contact details for the duration of his travel along with copy airline tickets/flight details, travel itinerary and accommodation details and forthwith inform the other parent of any changes to those details.
18.Each parent be permitted to travel overseas, outside of the Commonwealth of Australia, with X at times he is in their care pursuant to these Orders, subject to the following conditions unless otherwise agreed in writing:
(a)X is to travel only to countries in respect of which:
(i)the Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia; and
(ii)the Australian Department of Foreign Affairs and Trade Smart Traveller (or equivalent government department) travel advice is "Level 2 - exercise a high degree of caution" or lower;
(b)X is not to undertake any travel requiring him to undertake out of home quarantine in Australia or overseas for any period of more than 72 hours and any such quarantine is to be undertaken in the care of the Mother or the Father;
(c)the parent intending to travel with X is to advise the other parent in writing, in general terms, of their intended travel plans as soon as practicable once those plans are known but no less than 90 days prior to travel;
(d)not less than 30 days prior to travelling overseas with X, the parent travelling with X is to provide to the other parent all details for X's travel, including precise dates of travel and contact details for the duration of his overseas travel along with copy airline tickets/flight details, travel itinerary and accommodation details and is to forthwith inform the other parent of any changes to those details;
(e)X is to be accompanied on all international flights by the Father or the Mother or their agent, being an adult known to X; and
(f)the parent travelling with X is to facilitate communication between X and the parent at all reasonable times in accordance with Order 7.
19.Each of the Mother and the Father do all such acts and things as may be required to:
(a)apply for an Australian passport for X upon the request of the other, including to sign a completed application form within 14 days of being presented with that form the other parent; and
(b)thereafter ensure that X at all times has a valid Australian passport and to renew X's passports at least six months prior to expiry.
20.The Mother retain X's passport for safekeeping.
21.In the event of X's travel overseas with the Father:
(a)The Mother provide X's passport to facilitate his travel pursuant to these Orders at least 21 days prior to travel and as may be required for any visa to travel (or at such earlier time as is practicable if the parties are living interstate from one another); and
(b)The Father return X's passports to the Mother when X returns to her care.
22.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Yu & Casali has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, born in 2016. X is now 6 years old.
X’s parents commenced living together in Melbourne in May 2013. They separated in December 2020, following which time X has lived with his mother, Ms Yu, and spent time with his father, Mr Casali, as agreed between his parents. He currently spends time with his father for four nights each fortnight as well as extended time during school holidays and on special occasions.
Central to the issues arising for determination is Ms Yu’s desire to live in City B and Mr Casali’s desire to remain living in Melbourne. The parties’ respective proposals were finally articulated in a table with some oral amendments.[1]
[1] Exhibit A5.
Ms Yu proposes that X live with her in City B and spend time with his father in Melbourne once per month, in City B for up to each alternate weekend and for half school holiday periods. Additionally, on the assumption both parties are resident in either Melbourne or City B, she proposes that X spend time with his father initially for four nights per fortnight increasing to five nights per fortnight after two school terms. In the alternative, assuming X lives with his father in Melbourne and she lives in City B, she proposes X spend time with her in the same configuration as is proposed for X to spend time with Mr Casali in her primary position.
One of the orders Ms Yu seeks is that she be “permitted” to relocate with X to live in City B.[2] The use of that expression should be avoided as it distracts attention from the jurisdiction being exercised.[3] When that issue was raised with her Counsel in closing address, Ms Yu amended her application to seek an order that X live with her in City B.
[2] Exhibit A5, page 1.
[3] AMS v AIF (1999) 199 CLR 160 per Kirby J at [188], quoted in Wagstaff & Wagstaff (2022) FLC 94-098 per Aldridge & Jarrett JJ at [12].
Mr Casali proposes that X continue to reside in Melbourne. He proposes that X live with his parents on an equal time basis, initially for two nights in one week of each fortnight and five nights in the other, before progressing to week about time in 2025. Whilst it might appear implicit in that proposal that Ms Yu would be required to herself reside in Melbourne and he submits that “it is in X’s best interests for the mother to remain living in Melbourne”,[4] he eschews any suggestion that she be so coerced. Rather, he relies on the possibility that Ms Yu may voluntarily remain living in Melbourne. In the event Ms Yu moves to City B, he proposes that X spend time with her for one weekend each term in Queensland and up to 10 nights per month in Melbourne, as well as for extended holiday periods and on special occasions.
[4] Mr Casali’s Outline of Case filed 29 September 2022, page 6.
Mr Casali submits that the Court’s primary decision is binary, namely should X be permitted to relocate to City B. Framing the question in that way risks impermissibly treating relocation as a separate or discrete issue.[5] It also runs the risk that all of the competing proposals are not separately evaluated.[6] The proper focus is on whether it is better for X to live with his mother in City B or his father in Melbourne.[7]
[5] Taylor & Barker (2007) FLC 93-345 per Bryant CJ and Finn J at [53] and the cases there cited.
[6] U v U (2002) 211 CLR 238 per Gaudron J at [37 & 41].
[7] AMS v AIF per Hayne J at [218], quoted in Wagstaff per Aldridge & Jarrett JJ at [13].
Statutory principles
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act does not treat so-called relocation cases as a special category of case.[8] I am guided by the objects of Part VII and the principles underlying those objects.[9] X’s best interests are the paramount consideration.[10] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[8] Morgan & Miles (2007) FLC 93-343 at [80].
[9] Family Law Act 1975 (Cth), s 60B.
[10] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him.[11] The presumption does not apply if there are reasonable grounds to believe either of X’s parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
[11] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that X’s parents should have equal shared parental responsibility for him, I am required to consider whether X spending equal or substantial and significant time with each of his parents is in his best interests and reasonably practicable.[12]
[12] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
Primary considerations
The benefit to X of having a meaningful relationship with both of his parents
A meaningful relationship is one that is “important, significant and valuable” to X.[13] The legislation “aspires to promote a meaningful relationship, not an optimal one.”[14] The single expert witness, Dr C, opines that the ideal scenario for X is for both of his parents to live with him in Melbourne. Ms Yu submits, and I accept, that the adjectives “ideal” and “optimal” are relevantly equivalent.
[13] Mazroski & Albright (2007) 37 Fam LR 518 at [26], quoted in McCall & Clark (2009) FLC 93-405 at [115].
[14] Godfrey & Saunders [2007] FamCA 102 at [36], quoted in McCall & Clark at [116].
Dr C considers the impact on X’s relationship with his father attendant a move to City B to be “profound”.[15] He points to the fact that X would be unable to be taken to school on a regular basis by his father, that his father would not be involved in his “extracurricular activities, homework, play dates or wider social network”.[16] He considers their “time together would take on a more cursory, superficial, and artificial dimension”.[17] Further, he opines that:
As [X] grows older, and plays weekend sports, spending time with friends on weekends outside of school, he will also become less inclined to want to travel back to Melbourne. The trips would become increasingly disruptive, and likely, the child resentful. Eventually, he will probably resist travelling at all.[18]
[15] Affidavit of Dr C filed 18 September 2022, page 48, paragraph 51.
[16] Affidavit of Dr C filed 18 September 2022, page 48, paragraph 51.
[17] Affidavit of Dr C filed 18 September 2022, page 48, paragraph 51.
[18] Affidavit of Dr C filed 18 September 2022, page 48, paragraph 51.
Dr C’s evidence in that respect was essentially unchallenged and I accept it. However, if it is intended to suggest that any resistance by X to travel in the future will result in Ms Yu failing to comply with court orders requiring X to spend time with his father, I reject the suggestion. There is no evidence of her having failed to comply with historical orders for X to spend time with his father. It was not suggested to her that she would fail to promote X’s relationship with his father or comply with court orders to facilitate their time.
Whilst I have accepted that Xs’ paternal relationship will be profoundly impacted by relocating to City B with his mother, I do not give any weight to Dr C’s opinion that such a relocation would be “at the expense of a truly meaningful relationship between X and his father”.[19] The concept of a meaningful relationship is a legal construct to be determined by the Court, not a psychological one to be determined by an expert.[20]
[19] Affidavit of Dr C filed 18 September 2022, page 50, paragraph 55 f.
[20] Champness & Hanson (2009) FLC 93-407 at [191].
Despite the prominence of this consideration in the statutory framework, it must be observed that X’s relationship with his father need not be optimal.[21] Further, it would be erroneous to fail to consider what meaningful relationship can exist for X were he to live interstate from his father.[22]
[21] Asher & Wilkinson (2020) FLC 93-945 at [55].
[22] Asher & Wilkinson at [55 and 57] and the cases there quoted.
The effect of Ms Yu’s proposal is that X would have the opportunity to spend time with his father on approximately sixteen occasions each year, twelve of which would be in Melbourne and four in City B. Accordingly, X would have the opportunity to see his father twice in four calendar months each year. That time includes extended weekend time during school terms of up to four nights, extended time during school holiday periods and opportunities for Mr Casali to participate in X’s life in City B. Given Mr Casali is able to work from home for more than 5 weeks per annum, his current employment presumably permits him to spend extended periods in City B with X if he so desired. Further, the possibility of him relocating permanently to City B is not precluded by his evidence for reasons upon which I will expand.
Dr C gave oral evidence emphasizing the importance of incidental interactions between a child and a parent in their own home. On Ms Yu’s proposal, X will have extended opportunities to participate in such interactions in Mr Casali’s home. Dr C also gave an example of incidental and valuable interactions that might occur if a child and parent are stuck in traffic on their way to school. Whilst there might be a higher probability of being stuck in traffic on a week day going to school, there is also the possibility that such opportunities would arise when stuck in traffic travelling to and from the airport or X undertaking any number of activities with his father during their time together.
Clearly it is desirable, as is uncontroversial, that X maintain a relationship with both of his parents. Certainly X’s relationship with his father will be profoundly impacted by them living interstate from each other. Mr Casali will lose the opportunity to participate regularly in X’s schoolings and other regular activities as would otherwise be the case. However, it is not clear that there is a preponderance in favour of weekly time where less frequent but longer visits are practical and reasonable.[23]
[23] Craven v Craven (1976) FLC 90-049 at 75,205; quoted in D & SV (2003) FLC 93-137 at [16]; Sampson & Hartnett (No 10) (2007) FLC 93-350 at [54] and Asher & Wilkinson at [57].
Dr C effectively recommends that X remain living in Melbourne with both his parents. The recommendation appears to be, at least in part, based on his assertion that if living in City B without this father, X will have “his time with his father effectively removed”.[24] That opinion is hyperbolic and I reject it. It is inconsistent with the detailed and carefully crafted proposal for X to spend substantial and meaningful time with his father.
[24] Affidavit of Dr C filed 19 August 2022, page 49, paragraph 52.
It must be observed that the question of whether a parent should relocate with children is an issue for the Court and “not the province of opinions arising from the expertise and experience from the qualifications as a psychologist”.[25] Dr C’s recommended outcome also faces logical impediments to which I will return.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[25] Searson & Searson (2017) FLC 93-788 per Murphy J at [26].
Whilst Ms Yu makes allegations of family violence against Mr Casali, it is not her case that X is at unacceptable risk in the relevant sense in his care. Consensual arrangements have been in place since separation for X to spend unsupervised time with his father, extending thereafter to overnight time. It is Ms Yu’s current proposal that X spend extended unsupervised overnight time with his father.
I am not satisfied that X is at unacceptable risk of exposure to harm from being subjected or exposed to abuse, neglect or family violence.
Additional Considerations
Any views expressed by X and any factors (such as X’s maturity or level of understanding) that are relevant to the weight to be given to X’s views
Dr C had difficulty interviewing X. He reports on only a few peripherally relevant comments made by him during that interview. He considered X’s views about his future living arrangements difficult to discern. X nevertheless spoke positively about the environment and setting in City B. It is Dr C’s view that:
[X] is not of an age where he can reason through all of the implications associated with such a significant change, including the impact on his relationship with his father were he to live in Queensland. In absolute terms, I am not of the view that any opinion this child has or may offer regarding the proposed relocation should be weighted heavily.[26]
[26] Affidavit of Dr C filed 19 August 2022, page 45, paragraph 42.
I agree with the contentions of the parties that no real weight should be given to X’s views.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
Dr C opines that X has a positive relationship and healthy connection with both of his parents. He notes that Ms Yu has always been X’s “predominant care figure”.[27] He gives evidence that:
With his mother, there is obvious connection and familiarity. She has been prominent in his care to-date. She presents as an attuned, warm, and invested parent. [X] is obviously settled in her care and accustomed to her routine, care practices, and way of doing things.[28]
[27] Affidavit of Dr C filed 19 August 2022, page 72, paragraph 4.
[28] Affidavit of Dr C filed 19 August 2022, page 44, paragraph 39.
Dr C also opines that X is bonded with his father and notes the absence of any clinical data demonstrating that X has not forged a positive connection with his father.
I accept Dr C’s opinion as to the nature and quality of X’s relationship with his parents. Ms Yu readily conceded in oral evidence that X loves his father, is bonded to him and misses him when they are apart.
X has lived for a substantial portion of his life also with his maternal grandparents. They lived with him for extended periods of time from his birth and moved permanently to Australia from China in 2018 when X was approximately two years old. The maternal grandparents lived with the parties and X thereafter and have continued to live with X and his mother after the parties’ separation. X has for extended periods of time co-slept with his maternal grandmother who also assisted with delivering X to childcare. Ms Yu’s evidence that X often refers to the fact he has two mums, being Ms Yu and her mother, was not challenged. Neither was Mr Casali’s evidence that X’s maternal grandmother has been “somewhat of a mother figure to X”.[29] Consistent with Mr Casali’s oral evidence, I find that X is particularly fond of his maternal grandmother and they have a very close relationship.
[29] Mr Casali’s Affidavit filed 19 September 2022, paragraph 60.
Ms Yu gives evidence that her parents will move with her to City B. That evidence was not challenged by Mr Casali, although he complained that they were not on affidavit. Given Ms Yu’s parents have lived with her since moving permanently to Australia in 2018, I am not satisfied there is any basis upon which to conclude it likely they will cease doing so.
X’s paternal grandmother, Ms D, was concerned about X’s removal from Melbourne and initiated the current proceedings seeking to prevent that outcome. Nevertheless, Ms Yu gives unchallenged and uncontradicted evidence that during the parties’ relationship, Ms D played a limited role in X’s life.
Ms Yu gives evidence of concerns in relation to Ms D’s capacity to provide for X as a result of her mental health, physical incapacity, derogatory and racist comments, and apparent fraudulent conduct in relation to a speeding fine. Ms Yu sought that I find that given Ms D’s presence in Court throughout the hearing and apparent availability to give evidence, I should draw a Jones v Dunkel inference in favour of Ms Yu and favour her evidence in relation to those topics.[30] However, Mr Casali’s denials of Ms Yu’s evidence were not challenged in cross-examination. In circumstances where Ms Yu does not seek to restrain Ms D from undertaking any care for X, I consider it unnecessary to resolve the factual controversy.
[30] (1959) 101 CLR 298.
X described Ms Yu’s new partner, Mr E, as one of his mates to Dr C. Although Mr Casali contends their relationship is in “its nascent stages”,[31] he did not challenge the evidence of either Ms Yu or Mr E about the quality and nature of that relationship. Mr E and X enjoy activities together. Mr E has assisted X with his homework and has cared for X during the day while his mother was working. Mr E gives evidence that they regularly say they love each other and X initiates hugs with him. X met Mr E nearly two years ago and whilst they have not permanently lived together, they have spent extended periods of time together. I do not accept that the evidence supports a conclusion that their relationship is nascent. I accept Mr E’s unchallenged evidence that they share a really close relationship.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to X, to spend time with X, and to communicate with X
[31] Mr Casali’s Outline of Case filed 29 September 2022, page 6.
There is no suggestion that either party has historically failed to take the relevant opportunities afforded to them. That Mr Casali has unsuccessfully proposed that X spend more time with him is not relevant to this consideration.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain X
Mr Casali pays child support for X as administratively assessed at the rate of $306 per month. Both parties otherwise financially provide for X when he is in their respective care.
The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom X has been living
Mr Casali primarily seeks to implement the ideal or optimal scenario of X continuing to live in Melbourne with both of his parents. However, as has been observed, he does not seek to coercively impose that situation. Rather, he relies on the possibility that Ms Yu may elect to remain living in Melbourne.
Whilst Ms Yu’s additional proposal provides for parenting arrangements in the event both parents live in the same city, and refers to both City B and Melbourne, her evidence is as follows:
I have determined that if [Mr Casali] does not consent to [X] relocating with me to [City B] and the court does not permit me to relocate with him, that I will nevertheless move to [City B] without [X], as will my parents. This has been a very difficult decision for me, but I can't see myself continuing to live in Melbourne without the opportunities and support available to me in [City B].[32]
[32] Ms Yu’s Affidavit filed 12 September 2022, paragraph 158.
Ms Yu gave oral evidence that she had decided in around May 2022 that she would move to City B whether or not X accompanied her. She accepted in cross-examination that it was a big decision. She denied that she had not been clear in her intention when interviewed by Dr C on 31 May 2022. She was asked whether Dr C’s opinion about how distressing it may be for X if she left him in Melbourne and moved to City B had had any impact on her thinking or approach. She gave evidence that no, it did not impact on her thinking. She was then asked whether her view had changed having read Dr C’s report and she confirmed that her view had not changed.
In relation to Ms Yu’s decision to herself relocate whether or not X moves with her, Mr Casali gives evidence: “I believe this decision was a tactical one and very calculated. I am concerned that this decision is disingenuous and is designed to strengthen her position in these family law proceedings.”[33] I do not accept any suggestion by that evidence that I can reject Ms Yu’s evidence in relation to her intentions. There was nothing about the way in which she gave her oral evidence that suggested to me that she would do other than as she expressly intends to do, despite the difficulty of the decision she has made. I accept her evidence in that regard.
[33] Mr Casali’s Affidavit filed 19 September 2022, paragraph 48.
Mr Casali asks me to infer that Ms Yu may reflect on the evidence given during the hearing, and despite her unequivocal evidence to the Court, nevertheless determine to remain in Melbourne. I do not accept any suggestion that changes in Ms Yu’s positions support the drawing of the inference. As her Counsel pointed out in closing address, she had heard the totality of the evidence by the conclusion of the trial and had not instructed her representatives of any changed decision. More fundamentally, given the nature of Mr Casali’s case relies on that possibility which clearly contradicts her evidence, it was necessary for it to have been put to Ms Yu in cross-examination.[34] It was not. That omission is of particular importance given Mr Casali’s case relies on inferences to be drawn from other evidence.[35] Whilst it might be suggested that Ms Yu was on notice by the way Mr Casali put his case that he relied on that possibility, that reliance was not apparent to the Court until his closing address and could not be described as clear and obvious.[36]
[34] Browne & Dunn (1894) 6 R. 67.
[35] Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 26.
[36] LC v TC (1998) FLC 92-803 at [38] and the cases there cited.
Of course there is a distinction between proof of historical facts and the prediction of future possibilities.[37] Ms Yu may still change her mind and elect to remain in Melbourne if the outcome in these proceedings is unfavourable to her. However, I note that Ms Yu has employment in City B, her new partner resides there, she owns a house there and has a genuine desire to live there.
[37] Fitzwater & Fitzwater (2019) 60 Fam LR 212 per Austin J at [135] adopted in Isles & Nelissen (2022) FLC 94-092 at [50-51].
On the other hand, Mr Casali gives no evidence that he cannot move to City B. Neither does he clearly set out the reasons he cannot move. So much is surprising given that “it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing.”[38]
[38] U v U (2002) 211 CLR 238 per Hayne J at [17]
Nevertheless, the possibility of Mr Casali relocating to City B was not explored in cross-examination. He has long term employment in Melbourne, he owns a house there and has extended family who also live there.
Given neither party sought to compel the other to live in any particular location, the possibility that X could live in the same city as both of his parents relies on either Ms Yu living in Melbourne, contrary to her unequivocal and effectively unchallenged evidence to the contrary, or Mr Casali moving to City B, a possibility effectively uncountenanced in evidence. Given that forensic reality, I can only conclude that it is unlikely either scenario will eventuate.
Given that conclusion, to focus, as both Mr Casali and Dr C have, on the desirability of the ideal situation of X living in Melbourne with both his parents, is distracting. The likely effect of the orders sought by the parties is that X will live interstate from one of his parents. Mr Casali seeks that X live with him in Melbourne. Ms Yu seeks that X live with her in City B. Those respective positions must, in any event, be primarily considered even where an applicant in a relocation case concedes that he or she would not move without the child or children.[39]
[39] Jurchenko & Foster (2014) FLC 93-598 at [104, 108-109] and the case there quoted.
Dr C considers both the scenarios of X living interstate from one of his parents as “entirely unideal”.[40] I accept Mr Casali’s submission that the quoted phrase cannot be considered as merely sub-optimal. There is no doubt that the consequences on X of losing the extent of involvement of both parents in his weekly routines will be significant. He will, to some extent, lose the opportunity “to have both parents regularly and meaningfully involved in his care and upbringing,”[41]
[40] Affidavit of Dr C filed 19 August 2022, page 73, paragraph 8.
[41] Affidavit of Dr C filed 19 August 2022, page 73, paragraph 8.
Were X to move to City B, Dr C opines that X’s relationship with his father would be compromised. He considers that “in the immediate term, there would be a degree of distress and sense of displacement that would attend this boy, having his time with his father effectively removed.”[42] He gives the following opinion, parts of which have already been referred to:
Conversely, the impact on this child's relationship with his father if he were to move to [City B], would be profound. While [Ms Yu] has offered a generous regime of visits, each alternate weekend, the dynamic between [X] and his father would fundamentally shift. By living interstate, [X] could not be taken to school on a regular basis by his father. [Mr Casali] would not be involved in his extracurricular activities, homework, play dates, or wider social network. Their time together would take on a more cursory, superficial, and artificial dimension. As [X] grows older, and plays weekend sports, spending time with friends on weekends outside of school, he will also become less inclined to want to travel back to Melbourne. The trips would become increasingly disruptive, and likely, the child resentful. Eventually, he will probably resist travelling at all.
[42] Affidavit of Dr C filed 19 August 2022, page 49, paragraph 52.
Conversely, were X to live with Mr Casali in Melbourne without Ms Yu and her parents, Dr C opines that:
… the impact on this boy of his mother moving to [City B] without him would be severe. [X] would miss his mother enormously. There would likely be a sense of longing and displacement. He may experience feelings of anger, resentment, and abandonment. He would possibly enter a period of mourning. He may feel devalued that his mother her elected to pursue her new relationship and a life in Queensland at the expense of her role in his life. He may struggle to adjust to life full-time with his father, whom I note, has generally had a role in his day-to-day care secondary to that of his mother. The disconnect from his grandparents would be less profound, and while noting they have played a significant role in his care, they have also been absent for periods when they have returned overseas for visa reasons. In all, there will probably be an enormous emotional impact on this child, which may manifest in psychological difficulties, despair, behavioural challenges, and impairment in social and academic functioning.[43]
[43] Affidavit of Dr C filed 19 August 2022, page 72, paragraph 5.
In offering an opinion as to the comparison of those two alternatives, Dr C opines:
I would consider the effect of being disconnected from his mother to be greater than if his time with his father were to become constrained. Assuredly there would be negative consequences for this boy if he moved to Queensland, as outlined in my original report. However, this impact would be reduced in comparison to his mother, who has played a more prominent role in his life (and with whom he is most well connected) – [X] would miss his father and largely lose the benefits of [Mr Casali’s] positive influence, but the disruption and psychological implications would not be as acute.[44]
[44] Affidavit of Dr C filed 19 August 2022, page 72, paragraph 6.
Dr C’s oral evidence was consistent with that opinion. He referred in oral evidence to X being most familiar and conversant in the care of his mother and noted the significant involvement X’s maternal grandparents have had in his life.
Dr C gave oral evidence that psychologically, emotionally and developmentally, the impact on X will be reduced in the scenario of him living with his mother in Queensland as compared to living with his father in Melbourne. I accordingly find that the likely negative effect on X of being removed from his mother’s care is greater than being removed from living proximately to his father.
Clearly X moving from Melbourne to City B will be a significant change to his living circumstances. Dr C agreed in cross-examination that there would be some relevance to X’s benefit to staying in Melbourne where he has started school, has friends, wider family network and his historical home. However, Dr C considered that younger children will adapt more readily to changes. Ms Yu gives unchallenged evidence that X already has a best friend in City B who is 8 years old. I am not satisfied that changes to those environmental factors outweigh the likely effect of removing X from the care of his mother and maternal grandparents.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
It is not suggested that in the event X is living in the same city as each of his parents there are any practical or financial impediments to X spending time and communicating with each of his parents.
If X is residing interstate from one of his parents, there are substantial difficulties and expenses associated with him spending time with that parent. Ms Yu’s unchallenged evidence is that flights can be purchased as cheaply as $122 each way. Suitable accommodation for Mr Casali to stay with X in City B is available for as little as $90 per night. Ms Yu estimates the costs of Mr Casali travelling to City B to spend an extended weekend with X to be between $600 and $800. Mr Casali suggested the cost might be roughly $1,000.
Mr Casali earns approximately $4,000 per month net of tax from which he meets a mortgage of approximately $1,700 per month, child support of approximately $306 per month and services credit card debt of approximately $30,000. The home he owns had an agreed value of $1,200,000 in March last year and is now subject to a mortgage of $350,000. He conceded, and I accept, that it will be possible for him to travel to City B to spend time with X four times each year, even if it will be difficult.
The costs associated with X travelling interstate are substantially more, given he will need to be accompanied by an adult for a number of years. In the event X is living in City B, Ms Yu proposes to meet the costs of that travel for up to eight weekends a year as well as for four school holiday periods. Her capacity to meet those costs was not challenged by Mr Casali.
I conclude that despite the increased difficulty and expense of X spending time with his father if living with his mother in City B, it is practical for him to spend time with Mr Casali on approximately sixteen occasions each year, including for extended school holiday periods.
In the event X was living in Melbourne and Mr E and Ms Yu were living in City B, Mr E gave evidence that he would be entitled to travel subsidies from his employer. I conclude that Ms Yu would be able to travel to Melbourne to spend time with him for approximately the same number of occasions.
Mr Casali complains about the quality of his video calls with X. I consider the issues he raised of X taking the phone and walking around are likely the result of X’s age and that X’s capacity to more meaningfully engage on a video call will improve over time. Whilst Mr Casali also gives evidence of an occasion when the call was not facilitated due to Ms Yu taking X shopping and her phone battery being flat, I am not satisfied that substantial practical difficulties arise for ongoing communication between X and his parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for his needs, including emotional and intellectual needs
Both parties are capable of providing for X’s needs. Mr Casali does not dispute Ms Yu’s capacity to provide for X’s needs, even if he asserts she has prioritised her work and own needs and relied on her parents. Ms Yu readily conceded in oral evidence that Mr Casali is a capable father to X and cares well for him. It is also common ground that X’s maternal grandmother has been capable of providing for X’s needs for a majority of his life.
Mr Casali has failed to collect X from school on one occasion. Mr Casali attributes the failure to being a one-off confusion and the result of miscommunication between the parties. I am not satisfied it is demonstrative of any significant lack in Mr Casali’s capacity to provide for X. I accept Dr C’s opinion that Mr Casali is less proficient in some aspects of X’s care even if not lacking in competencies with him.
In the event X lives in Melbourne with his father and his mother lives in City B, Mr Casali agreed that X may find it difficult to adjust to that arrangement. His assumption that it was likely to proceed reasonably well because X has spent a couple of weeks at a time with him while his mother was in City B, and he would be able to talk with him, was, in Dr C’s opinion, naive. Ms Yu’s evidence that X told her that he missed her during those periods and did not like spending so long away from her was unchallenged and I accept it. Mr Casali’s suggestion that he would facilitate regular calls between X and his mother in that event were not considered to be necessarily helpful by Dr C as they may increase homesickness and yearning for his mother.
Mr Casali gave oral evidence that if X’s adjustment does not ultimately go as hoped, he would concede that X probably would need to go and live with his mother in City B. So much reflects well on his capacity to provide for, and prioritise X’s needs. Dr C generally reflected well on Mr Casali’s child focus and knowledge of X.
To both parties’ credit, they have been able to communicate with each other civilly and appropriately in relation to X after their separation. I accept Ms Yu’s submission that they have demonstrated a capacity to parent cooperatively, including through the making of joint decisions. Dr C observes that major decisions affecting X “have not been compromised or delayed as an artefact of a dysfunctional and combative co-parenting situation.”[45]
[45] Affidavit of Dr C filed 19 August 2022, page 42, paragraph 35.
Dr C considers that X has adjusted to his parents’ separation in a straightforward manner. Both parties have contributed positively to that situation and Dr C notes that neither has “embarked on a deliberate attempt to disenfranchise this child from the other side of his family, through snide remarks, denigration, or undermining.” [46]
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of X’s parents, and any other relevant characteristics of X
[46] Affidavit of Dr C filed 19 August 2022, page 43, paragraph 37.
X is progressing well at school, displaying good effort and behaviour. He is achieving at expected levels.
X has Chinese heritage. His maternal grandparents speak to X in Mandarin, watch Chinese cartoons with him and read books to him in Chinese. That exposure to his Chinese heritage is far more extensive than the proposal by Mr Casali to enrol X in a Chinese language class, celebrate Chinese New Year and give X a pocket envelope containing money. Ms Yu’s evidence that Mr Casali did not respect her Chinese culture during the relationship was not challenged.
Whilst X also has Country F heritage, there is a paucity of evidence in relation to it.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of his parents
Ms Yu introduced X to Mr E prior to her separation from Mr Casali. Nothing turns on whether it was after two physical meetings between Mr E and Ms Yu as recalled by her or three or four as recalled by Mr E. Dr C considered it was self-evidently premature and suggested a prioritisation of Ms Yu’s burgeoning relationship rather than a focus on X. That suggestion is inconsistent with Ms Yu’s evidence that X’s visits to Town G were to take him to see machines about which he was obsessed. She gave evidence that she had been researching online how and where it might be possible for X to see machines and had identified the museum in Town G as an opportunity to do so. Mr E’s evidence is that X was introduced to him as a friend.
Whilst Ms Yu gave evidence that X and Mr E formed a close bond after just one visit, I am not satisfied her drawing that conclusion reflects poorly on her attitude to the responsibilities of parenthood, given the unchallenged evidence of X and Mr E’s common interests.
Dr C opined that Ms Yu’s decision to herself relocate to City B whether X is permitted to or not raises questions about her prioritisation of X’s needs ahead of her own. His opinion about that issue was unexplored by him with Ms Yu as a result of his determination not to re-assess her for the preparation of his addendum report. I accordingly give it limited weight. Further, the issue was not directly raised with Ms Yu in cross-examination.
Dr C’s and Mr Casali’s reference to Ms Yu prioritising her own needs ahead of X by determining to relocate to City B with or without him raises echoes of the dilemma posited by Justice Gaudron in U v U:
A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.[47]
[47] U v U at [36].
Dr C also failed to raise the prospect with Mr Casali of him relocating to City B to prioritise his child’s needs over his own in the event that was where X is living. He apparently proceeded on the legally impermissible assumption that Mr Casali will not move.[48]
[48] U v U per Hayne J at [173-176].
Both Ms Yu and Mr Casali presented their cases on the basis that whatever the outcome of the proceedings, they would not compromise their own desires to live in a place of their choosing. Whilst only Ms Yu gives evidence explaining her reasoning, I accept that both have good reasons for their respective positions. To the extent their positions reflect poorly on their attitude to the responsibilities of parenthood by prioritising their own interests over X’s, such criticism should be levelled at both equally.
Ms Yu referred, in her trial affidavit filed and served on 12 September 2022, to the possibility of X attending City B School. Mr Casali had, by the time of the hearing on 3 October 2022, made no enquiries of that school as it was school holidays. Whilst that may have been true until 4 October 2022, he accepted that he made no enquiries with the school during the week ending 16 September 2022. Whilst that opportunity was limited, it is regrettable that Mr Casali failed to make any enquiries in relation to a proposal for X’s schooling prior to the hearing.
Mr Casali had also failed to undertake searches into the costs of himself travelling to see X in City B if Ms Yu’s proposal is accepted. His repeated evidence that it would be financially difficult was accordingly not informed by enquiries he had himself made. The absence of him having made those enquiries was also inconsistent with Mr Casali’s evidence that he sought to spend as much time with X as possible.
Mr Casali’s attitude to the responsibilities of parenthood is well reflected in his ongoing maintenance of financial security in sponsorship of X’s maternal grandparents’ visa.
Any family violence involving X or a member of X’s family
Ms Yu gives evidence that Mr Casali displayed anger and lost his temper over minor matters during their relationship. She deposes to him bursting into a rage causing her father fear. She deposes to dreading being in a car with Mr Casali as he often shouted at other drivers. She deposes to him being financially controlling of her through questioning her purchases and telling her not to buy certain things for herself. She deposes to “walking on eggshells” and being worried about making Mr Casali angry.[49] She gives evidence of Mr Casali swearing at her and regularly yelling at her after becoming aware of her friendship with Mr E.
[49] Ms Yu’s Affidavit filed 12 September 2022, paragraph 35.
It was suggested to Ms Yu in cross-examination that her evidence that Mr Casali calmly discussed with her the prospect of her moving to City B in January 2021 was inconsistent with her assertions that he was angry and distressed in December 2020, including then threatening to burn Mr E’s car. I find no such inherent inconsistency between the two.
It was put to Ms Yu in cross-examination that Dr C had found Mr Casali’s presentation to be incompatible with the allegations she made and that she now agrees that X is safe and well cared for by Mr Casali. She nevertheless maintained that her evidence in relation to Mr Casali’s presentation as angry and controlling is accurate. I do not consider that her evidence is inconsistent with the fact she was able to meet Mr E online and physically met with him prior to the parties ceasing to cohabit. I accept Ms Yu’s evidence in relation to Mr Casali’s anger and controlling behaviour.
Nevertheless, Dr C’s opinion that X is not at “any elevated risk in the care of the father resultant of the claims by the mother”[50] was not challenged and I accept it.
If a family violence order applies, or has applied, to X or a member of X’s family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
[50] Dr C’s Affidavit filed19 August 2022, page 46, paragraph 44.
No family violence orders apply or have applied.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
Whilst I have determined it unlikely that X’s parents will be resident in the same location, both parties seek orders to provide for X’s living arrangements if such an outcome does eventuate. Doing so will minimise the risk of further proceedings in relation to X.
In that event, there is a dispute between the parties as to whether X ought to spend equal time with each of his parents as is proposed by Mr Casali or substantial and significant time with his parents as is proposed by Ms Yu.
Dr C does not support the introduction of an equal time arrangement. He recommends that consideration be given to increasing the existing four nights X spends with his father each fortnight to five. He did not resile from that position in cross-examination despite being advised of the fact that X had successfully spend two blocks of approximately two weeks in his father’s care in April and May this year. Dr C did accept that it might be a realistic or workable prospect to implement a week about arrangement in 2025. That evidence does not amount to his endorsement of it.
I consider Dr C’s opinion supporting a gradual introduction of five nights per fortnight to have an appropriate foundation and afford it substantial weight.[51] Conversely, that Mr Casali considers that X would benefit from an equal time arrangement because his parents will play an equal role in, and contribute equally to, his life is not an opinion upon which I place any substantial weight.
[51] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
Any other relevant fact or circumstance
It is appropriate to here consider the possibility of “relocation”.[52] It is also seminal to observe that Ms Yu is not required to demonstrate compelling reasons to justify the relocation of X’s residence.[53]
[52] Taylor & Barker (2007) FLC 93-345 per Bryant CJ & Finn J at [55].
[53] AMS v AIF (1999) 199 CLR 160.
Ms Yu proposes to move to City B in order to continue in her current employment. Her work hours will be reduced and her commute shorter. Ms Yu also proposes to move to City B to cohabit with her partner of nearly two years. She expects doing so will provide her with additional personal, physical, emotional and financial support. Mr E is a public servant and is posted to City B until the end of 2025. He has the option of obtaining two further three year postings in City B thereafter. He intends to remain at the City B employment before retiring from the public service. Mr E’s parents and two of his brothers live in City B.
Whilst Mr E accepted in cross-examination that his skill set is highly sought after at the Town G Employer L in Victoria, for health reasons, he considers doing work there is likely to reduce the length of his career in the public service or lead to him losing his quality of life. He has herniated and ruptured his spine on two occasions, injuries which he considers more severe than those suffered by other medically discharged colleagues. His previous work as an educator exposes him to considerable risk of further injury. He denied that he is qualified for other roles in Victoria.
Mr Casali submits that I should be concerned about aspects of the evidence adduced on behalf of Ms Yu, and that it was in some respects misleading.
Ms Yu and Mr E’s relationship developed quickly, and whilst they each gave different evidence in relation to when their interactions become more than platonic, it had certainly commenced almost immediately following the parties’ separation in December 2020. Ms Yu gave oral evidence that her relationship with Mr E was just a friendship in late 2020. In late 2021, she posted on her Facebook page photos of her with Mr E and the comment “Happy anniversary babe”.[54] She gave oral evidence that she considered that date to be the day she met Mr E and that she celebrates that date because of the effect he has had on her life. She denied that she had commenced a relationship with him in late 2020. I do not consider anything turns on the precise date on which the relationship had commenced, even if Mr E considered it had done so prior to the parties’ separation in December 2020.
[54] Exhibit R3.
One of the things over which Ms Yu and Mr E apparently bonded was a love of City B. It came as a surprise to Mr E that Ms Yu had not visited City B prior to late 2020. Ms Yu gave evidence that the basis for her love of City B were discussions with her employer’s shareholder who was based there. She had showed her pictures of her house and facilities in City B. Ms Yu agreed that her solicitor’s correspondence dated 21 June 2022 asserting that she had enjoyed frequent trips to City B before she met Mr E was inaccurate.
It was suggested to Ms Yu in cross-examination that the absence of her travel to City B prior to late 2020 was inconsistent with the impression created by her evidence that “Since early 2019, I worked as a finance professional for Employer H. Employer H had numerous offices in Queensland, and I was required to travel to City B on occasion for work.”[55] Ms Yu gave oral evidence that work travel to City B had been planned but did not take place due to COVID-19 pandemic restrictions, suggesting she was required to travel there for work. So much is consistent with one interpretation of her quoted written evidence.
[55] Ms Yu’s Affidavit filed 12 September 2022, paragraph 90.
Mr E initially gave evidence that Ms Yu and X had travelled to City B at the end of 2020. He subsequently corrected that evidence to confirm that only Ms Yu had travelled on that occasion and that Ms Yu and X had travelled to City B in May 2021. I do not conclude that he was seeking to mislead the Court in giving that evidence. His corrected evidence was inconsistent with Ms Yu’s evidence that she did not visit City B between January and December 2021.
Mr Casali submits that Ms Yu was misleading in describing her employment situation. She gave oral evidence that in late 2021, she had been offered a role with Employer H (“Employer H”) in City B, which if she did not take up she would probably lose her job. That no documents were discovered in relation to the offer is consistent with Ms Yu’s evidence that she did not have anything in writing. The offer was premised on an expansion of Employer H in Queensland which ultimately did not proceed. She deposed in late 2021 to being the “finance professional of an organisation relocating to City B” and needing to move to City B to retain her employment.[56] That evidence is poorly expressed in the sense that Employer H itself was not relocating to City B, rather the part of the business in which Ms Yu worked was moving to City B. However, I do not accept that Ms Yu’s evidence was intentionally misleading.
[56] Exhibit R1, page 8, paragraph 46(a).
In early 2022, Ms Yu signed an employment contract with Employer H. She represented, inaccurately, through her solicitors in June 2022 that she continued to work for Employer H. I reject Mr Casali’s assertion that she thereby misled the Court, given the document was not filed in these proceedings by Ms Yu; nor was it a sworn statement by her. Mr Casali alleges that having filed an affidavit in January, it was incumbent upon her to update that evidence. I reject the submission. If every change of that nature necessitated the filing of new affidavits, it would add unnecessary expense and inefficiency to litigation, contrary to the Court’s overarching purpose.[57]
[57] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190.
In early 2022, Employer H was sold to new owners. Ms Yu’s role in Employer H was not transferred to those new owners. She then accepted an identical role in Employer J. It should be noted that prior to Employer H’s sale, there were common shareholders and directors to both Employer H and Employer J. Mr Casali has not established that Ms Yu could have continued her role at Employer H in Melbourne after its sale. He has also not established that Ms Yu could continue her role with Employer J remotely from Melbourne. Her evidence is that her job requirement is onsite in City B where she is required to sit in an office to manage her team. That requirement is consistent with a letter from her employer which refers to the fact she has spent more than half the time away from the office and states that the situation “is not viable in the long term, and we will require your more permanent attendance in the office”.[58] Failing such attendance, her employer states her continued employment would need to be considered. I accept Ms Yu’s evidence that she expects to lose her job in City B if she does not relocate there. That Ms Yu did not ask her employer when negotiating her contract whether she could work between Melbourne and City B does not establish that such an arrangement would be to the satisfaction of her employer. I also do not accept that Ms Yu engineered the move of her employment to City B, given it was effectively a consequence of the sale of Employer H. I do not consider the absence of an affidavit from Ms Yu’s employer leads to different conclusions.
[58] Exhibit A1.
I accept that Ms Yu did not make substantial enquiries or make application for alternative roles in Melbourne. However, Ms Yu’s detailed evidence about the unavailability of comparable work at other employers in Melbourne was not specifically challenged. Further, there is no principle reason to be more critical of Ms Yu for failing to make enquiries to obtain work in Melbourne than of Mr Casali’s failure to adduce evidence of any enquiries made by him to work in City B.
Ms Yu was criticised for not disclosing her purchase of a property in City B in her originating documents. She gave evidence that she did not think it was necessary to do so and that at that time it was an investment property. Even though by then it was occupied by Mr E rather than being rented out, I do not accept Ms Yu intentionally failed to disclose relevant material.
Mr Casali sought to criticise the financial arrangements between Ms Yu and Mr E. Mr E has applied his savings totalling approximately $80,000 to the City B property registered solely in Ms Yu’s name. So much tends to corroborate the evidence of both Ms Yu and Mr E relating to the strength of their relationship and is indicative of the very considerable trust between them.
Both Mr E and Ms Yu gave evidence that they had not claimed assistance from the Employer L Home Ownership Scheme to which Mr E is entitled. Ms Yu gave evidence that costs would need to be incurred to transfer the property from her sole name into joint names and incur fees for breaking her existing fixed interest rate mortgage.
Mr Casali suggests that Ms Yu’s relationship with Mr E is in some ways untested. She denied the proposition. Certainly they have not lived together on a full time basis, however, they have spent extensive time under the one roof, including on most weekends in 2021 and for extended periods when Mr E has been on leave or Ms Yu has been working in City B. Mr Casali suggests those issues are more acute given the maternal grandparents live with Ms Yu. Mr Casali gave evidence that he communicated freely with Ms Yu’s parents via a translation phone app and that he shared particular interests with Ms Yu’s mother. I do not place any significant weight on the fact that Ms Yu and Mr E have not previously permanently cohabited.
Ms Yu gives evidence that, in January 2021, Mr Casali said “he would agree to X relocating as long as he stayed at one primary school and was not constantly moving. I assumed he was concerned that Mr E’s job with the Employer L might require him to move and I reassured Mr Casali that X would attend one primary school.”[59] She had also deposed in her earlier affidavit filed in the proceedings to Mr Casali saying he was agreeable to the relocation. Ms Yu gave oral evidence that he expressed an openness to discuss the relocation but agreed that he did not express a concluded agreement to it. I am not satisfied that Mr Casali initially agreed to the relocation as asserted by Ms Yu.
[59] Ms Yu’s Affidavit filed 12 September 2022, paragraph 76.
Certainly I accept that there are aspects of Ms Yu’s evidence that were inconsistent and aspects I have rejected. However, I do not find Ms Yu’s evidence to be generally incredible or unreliable. I am also not satisfied that the inconsistencies lead to a conclusion that Ms Yu will not comply with Court orders to facilitate X’s time with his father, which suggestion was not put to her. Mr Casali did not otherwise articulate the relevance of the concerns he submits I should have about Ms Yu’s evidence.
Ms Yu gives the following unchallenged evidence:
I have been struggling living in [Suburb K] since I separated from [Mr Casali]. When we separated, I had no idea how I was going to make things work on my own, even with my parents helping me with [X]'s care. I feel isolated and unsupported in Melbourne. I am usually a happy and outgoing person, but I have been feeling flat, I have trouble sleeping and I cry often.[60]
[60] Ms Yu’s Affidavit filed 12 September 2022, paragraph 110.
Dr C expressed the following unchallenged opinion:
There is no doubt that [Ms Yu] would benefit enormously from the proposed change. She has been able to organise her work to be administered from Queensland; she would be able to continue unabated her bourgeoning relationship with [Mr E]; there would be a lifestyle and climate in [City B] that, arguably, exceeds that in Melbourne; she would be able to assume residence in a property she has purchased in that state, fulfilling a goal she has had for some time. Moreover, she is now a single mother, of a young child, with no family permanently living in Melbourne. No doubt, the benefits that [Ms Yu] would enjoy from being granted permission to move, would also flow onto [X] himself. It is quite possible also that there would be direct lifestyle benefits for this boy, living close to the beach, and forging a connection with other children of [public service] families, in what I understand to be a close-knit community.[61]
[61] Dr C’s Affidavit filed 19 August 2022, page 48, paragraph 50.
In circumstances where Ms Yu is isolated, unsupported, and cries often, the benefits flowing to X from the enormous benefits Ms Yu will enjoy if X is living with her in City B, are significant. The happiness of X’s mother is a matter that can properly be afforded substantial weight.[62]
[62] Taylor & Barker (2007) FLC 93-345 per Bryant CJ & Finn J at [113].
Ms Yu also considers that she can provide X with a good life in City B given her love of, and desire to live there. It is a smaller city than Melbourne. She told Dr C that she loves the city, it is sunny and bright all the time and reminds her of her hometown. She considers that the city promotes outdoor living which is of importance given X is an outdoor kid. She also spoke to Dr C of the multicultural aspects of the city and its lower cost of living.
Parental responsibility
Consistent with the statutory presumption,[63] both parties propose that X’s parents have equal shared parental responsibility for him. I consider such an outcome to be in X’s best interests.
[63] Family Law Act 1975 (Cth), s 61DA.
Implicit in the parties’ mutual contentions is that they consider themselves capable of complying with the requirements of section 65DAC of the Act to make joint decisions about major long term issues. Ms Yu nevertheless proposes an order that X attend City B School. Mr Casali opposes the making of an order in relation to schooling, relying on the parties’ capacities to co-operate in relation to such decision-making. However, he has previously failed to avail himself of a limited opportunity to make enquiries of City B School and gives no evidence of other preferred schools in City B. Although Mr E gave evidence that he has no savings other than the funds he has contributed to the City B property and Ms Yu deposes to expecting to be able to afford the school fees from their joint incomes together with those savings, I consider it to be in X’s best interests for him to attend City B School in the event the parties are unable to reach any other agreement. Mr Casali gave evidence that his ideal would be for X to attend a School in Melbourne and appeared to accept in cross-examination that X could attend City B School on the basis that Ms Yu pays the fees as she proposes.
I am required to consider whether X spending equal time with each of his parents is in his best interests and reasonably practicable.[64] The latter statutory imperative is “concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.”[65] Here, the reality of the situation is that each party proposes to reside interstate from each other. I am not being asked to compel a different outcome. In those circumstances, it is not reasonably practicable for X to spend equal time with each of his parents, which outcome I also conclude is not in his best interests given the findings to which I have already referred.
[64] Family Law Act 1975 (Cth), s 65DAA(1).
[65] MRR v GR (2010) 240 CLR 461 at [15].
Ms Yu contends that the time she proposes for X to spend with his father in the event X moves to City B satisfies the minimum statutory definition of substantial and significant time. [66] Mr Casali did not contend otherwise. I am satisfied that, whilst the opportunity for Mr Casali to be involved in X’s weekday school routine is limited, overall, the time proposed, including providing for time on special occasions is both substantial and significant.[67]
[66] Family Law Act 1975 (Cth), ss 65DAA(3 and 4).
[67] Ulster & Viney (2016) FLC 93-722 per Ainslie-Wallace and Ryan JJ at [87 to 92]; Tibb & Sheen (2018) 58 Fam LR 351 per Murphy and Cronin JJ at [43 to 66].
I have already concluded that Ms Yu’s proposal in the event X is living in City B is practicable despite its inherent difficulties. I am satisfied that her proposal in that event is both reasonably practicable and in X’s best interests. In the event the parents are living in the same city, I also find the arrangements proposed by Ms Yu for substantial and significant time to be reasonably practicable and in X’s best interests.
Conclusions
The desire of each of the parties to live interstate from each other throws up a familiar problem:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children.[68]
[68] Franklyn & Franklyn [2019] FamCAFC 256 at [27].
The following general statements of principle are relevant to the resolution of that tension in the circumstances of this case:
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act. Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children. Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests.[69]
[69] Franklyn at [28] (citations omitted).
Here both parents propose to live interstate from each other. Neither seeks to coerce the other to live in a place not of their choosing. The evidence does not satisfy me it is likely either will determine to compromise their positions in order to live proximate to X. The result is that I am required to consider the primary alternatives of X living interstate from one parent, either with his father in Melbourne or his mother in City B. X’s best interests in that case clearly favour not being removed from his mother who has always been his predominant care figure.
I reject Mr Casali’s suggestion that I should make orders premised on both parties living in Melbourne because doing so provides the possibility that X’s parents will ultimately reside in the same State. He has not established that he is unable to himself relocate to City B. Neither has he established a likelihood that Ms Yu will act contrary to her stated intention to relocate to City B with or without X. I consider acting on that suggestion would be tantamount to seeking to “mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests.”[70]
[70] Adamson& Adamson (2014) FLC 93-622 at [68].
Absent Mr Casali seeking a coercive order to compel Ms Yu to remain in Melbourne, the reality provided for by his proposal is that X would live primarily with him in Melbourne and be removed from the primary care of Ms Yu. I am not satisfied that outcome is in X’s best interests.
Mr Casali relies on the authority of Yarrow, apparently for the proposition that a lack of evidentiary detail in a proposal to relocate may make it difficult to conclude that children’s best interests lie in relocation.[71] With respect, that proposition is readily distinguishable from the facts of this case. Ms Yu’s relocation proposal is set out in detail with respect to all aspects of X’s welfare, including each of the topics identified as having been deficient in the quoted paragraph of Yarrow.
[71] Yarrow & Yarrow [2022] FedCFamC1A 135 at [29].
Even if I were satisfied that Ms Yu would, despite her evidence, not relocate herself to City B were X to remain living here, I am not satisfied that her right to live and work where she desires, and her right of freedom of mobility ought defer to the paramount consideration of X’s best interests. Those interests would not be so adversely affected as to justify such interference.[72] Whilst X’s relationship with his father will be profoundly impacted by moving to City B and Dr C opines that X would benefit enormously from having both parents in his life to a significant degree, for his mother to remain living in Melbourne leaves her separated from her partner of nearly two years, unable to undertake her current employment and living in a city she would prefer not to live in. To repeat, she is struggling living here, feels isolated, unsupported and cries often. I am not satisfied it is in X’s best interests to impose such an outcome on the parent who will be providing for the majority of X’s care.
[72] Adamson at [65-66].
I conclude that it is in X’s best interests to live with Ms Yu in City B.
Mr Casali makes no proposal for the orders to be made for X to spend time with him in that event. Ms Yu proposes that X spend time with his father one occasion each month for an extended weekend of up to four nights in Melbourne, for up to alternate weekends in City B, and for all but the last five days of term holidays and half the school holiday periods. Mr Casali gave oral evidence that he would prefer to share holiday time equally, even if X is resident in City B. In light of that evidence, both parties contended in final submissions that an equal sharing of all school holidays is appropriate, which I find to be in X’s best interests. I otherwise find the proposals of Ms Yu for X’s regular time with his father to be in X’s best interests. Dr C did not consider the entailed school absenteeism to be excessive.
Although Mr Casali formally sought different orders for the coming summer school holiday periods, he gave evidence that he thought those orders replicated earlier Consent Orders made for that period on 28 July 2022. He ultimately agreed that the existing Interim Orders should operate for that school holiday period. Although Ms Yu proposed an order that discharged all other orders, I am not satisfied doing so would leave the other interim orders in operation given they are ipso facto discharged by the final orders.[73] Accordingly I will incorporate the relevant interim consent order into the final orders now made.
[73] Keskin & Keskin & Anor (2019) FLC 93-932 at [31] and the authorities there cited.
The parties agree on arrangements for X for Christmas. Although Mr Casali initially sought different arrangements to those proposed by Ms Yu for X’s birthday, he accepted in oral evidence that his proposal for additional overnight time was undesirable. I accordingly prefer Ms Yu’s proposal for those occasions which would not entail a disruption to X’s usual sleeping arrangements. I prefer Ms Yu’s proposal for Father’s and Mother’s Day given it will maximise X’s opportunity to share in weekend activities with his respective parents on those occasions.
I also prefer Ms Yu’s proposal for changeover arrangements which Mr Casali conceded are more practical, particularly in terms of exchanges at Melbourne Airport which is in relatively close proximity to his residence. Mr Casali conceded in oral evidence that he would agree to changeover occurring at the Melbourne Airport in the event X is living in City B. He did not dispute in oral evidence Ms Yu’s proposal in relation to unaccompanied travel which I also consider to be in X’s best interests.
Mr Casali ultimately gave oral evidence that he considered arrangements for X to communicate with his parents on three occasions per week to be in X’s best interests. It is desirable that the times for such calls be prescribed and accordingly I prefer Ms Yu’s proposal in relation to that communication.
Mr Casali agreed in oral evidence that it was desirable for the parties to send each other a weekly handover message addressing particular issues, as was recommended by Dr C. I consider the orders proposed by her for communication between the parties to be in X’s best interests.
I do not consider Mr Casali’s application for X’s parents to have first option to care for him in the event the other parent is unable to do so for more than 2 days to be in X’s best interests, which order I find to be impracticable given the conclusion I have reached about X’s living arrangements.
A number of other aspects of the parenting proposals were agreed between the parties, which orders I find to be in X’s best interests.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 14 October 2022
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