CAMINITI & CAMINITI

[2015] FamCA 59

FAMILY COURT OF AUSTRALIA

CAMINITI & CAMINITI [2015] FamCA 59

FAMILY LAW – CHILDREN – Relocation – mother seeks to relocate to the USA with the child – equal shared parental responsibility – not reasonably practicable for father to spend substantial and significant time with child – benefit to the child of meaningful relationship – where father has had limited involvement in parenting of the child – close and loving relationship between mother and child – best interests of the child – orders made allowing mother to relocate to the USA.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 70M
Family Law Regulations 1984 (Cth) reg 24

Heaton & Heaton (2013) 48 Fam LR 349
Jurchenko & Foster [2014] FamCAFC 127
Mazorski v Albright (2007) 36 Fam LR 518
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404

APPLICANT: Ms Caminiti

RESPONDENT: Mr Caminiti

FILE NUMBER: BRC 9921 of 2011

DATE DELIVERED: 11 February 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Justice Dawe

HEARING DATE: 9, 10 & 11 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barry

SOLICITOR FOR THE APPLICANT: Darwin Family Law

COUNSEL FOR THE RESPONDENT: Mr McGregor (with Mr Carter)

SOLICITOR FOR THE RESPONDENT: Carter Farquar Mediation & Family Law

Orders

1. All previous orders shall be discharged.

2. The child shall live with the mother and the mother shall forthwith be permitted to relocate the child’s residence to the United States of America (“USA”).

3. The parties shall have equal shared parental responsibility except as to the issue of the child’s schooling and further in relation to the child’s schooling the mother shall consult the father and make best endeavours to reach agreement with him in relation to where the child may be enrolled.

4. Subject to these orders, during school holidays the father may spend up to seven [7] weeks with the child each year during the child’s USA school holidays.

5. The father shall only spend the time with the child outlined in paragraph 17 if he complies strictly with the following:

   a.the father notifies the mother of his intention to spend time with the child pursuant to these orders at least two [2] calendar months before the child is due to travel to the father, and specifies the exact dates that he seeks to spend time with the child;  and

   b. the child is returned to the mother in Brisbane at least one [1] week before the child is due to commence school;  and

   c. the father shall notify the mother where the child shall be staying if the child is not staying at the father’s residence for more than 48 hours when the father is spending time with the child.

6. The mother shall pay for and arrange the child’s travel to and from the father’s residence in Queensland and accompany the child on her flights to and from the USA for as long as it is necessary to accompany the child.

7. In the event that the father or his immediate family travels to the child’s place of residence, upon giving the mother thirty [30] days’ notice, the father or his immediate family may spend liberal time with the child as agreed between the mother and father but the child must be returned on a weekend by 12 noon the day before school commences unless the parties reach agreement about the father spending overnight time with the child.

8. Should the father visit the location where the child is residing, the father may spend liberal time with the child, at times agreed between the parties.

9. The child shall not spend time alone with Mr H (the partner of the maternal grandmother).

10. Neither party shall change the child’s citizenship.

11. If the parties are not living within two [2] hours’ drive of each other, the parent with whom the child is living shall email the other party photographs of the child and an update about the child, at least once every two [2] months.

12. The child shall be at liberty to speak with either parent or Ms S or Mr F on the telephone, Skype or similar at all reasonable times and each parent shall facilitate the child speaking to the other parent at all reasonable times in a reasonable manner.

13. The parties will keep each other promptly informed as to any emergency, serious illness or serious medical concerns in relation to the child in a timely manner and if there are any matters of an urgent nature, the parent who has the care of the child will notify the other parent immediately.

14. Each parent shall be entitled to obtain copies of the child’s school and health-care records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

15. Neither parent will denigrate the other, or either parties’ family members, in the presence or hearing of the child, nor shall either party involve the child in discussions about any conflict between the parties.

16. Except as otherwise provided in these orders, the child shall be permitted to travel interstate and/or overseas with either of the parties whilst in their respective care provided that the party with whom the child is to travel provides to the other party not less than fourteen [14] days’ notice and provides itineraries, return plane tickets, contact addresses and telephone numbers for the child whilst they are interstate and / or overseas so that the child can communicate with the other party at all reasonable times, and further:

    a.neither party shall permit the child to travel interstate or overseas on school days, unless otherwise agreed in writing;

    b.subject to any further order of this Court overseas travel not to occur without the prior written consent of the other party and such consent not to be unreasonably withheld.

17. Neither party shall take the child to any country that:

    a.has a current Australian Government warning which recommends against persons travelling to that country for tourism or like purposes;  or

    b.        is not a Hague Convention country, with the exception of Indonesia.

18. Should either party refuse to sign a passport application this order shall serve as an authority of that party, for the purpose of a passport application.

19. Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within three [3] days of any change.

20. The child’s grandmother (Ms M) and Mr M may telephone or Skype the child at any reasonable time.

21. When travelling on a plane the child shall be accompanied up until an age agreed to by the parties.

22. The Mother and Father shall jointly together explain these orders made to Y.

23. The Initiating Application filed by the mother on 27 May 2014 is dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: BRC 9921  of 2011

Ms Caminiti

Applicant

And

Mr Caminiti

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings relate to the best interests of the child Y (“the child”) born in 2006, now aged eight.  The applicant mother, Ms Caminiti, seeks permission to relocate with the child to South Carolina in the United States of America (“USA”).  The father, Mr Caminiti, opposes that relocation.

2. Notwithstanding the dispute between the parties concerning the relocation, the parties were able, with the assistance of their legal representatives, to agree to orders which would apply regardless of where the child is living.  They were also able to agree to orders which would apply if the mother was permitted to relocate with the child to the USA and orders which would apply if the mother was not permitted to relocate.

3. The main issue to be determined by the Court is whether the child should be permitted to relocate to live permanently with the mother in the USA.

Relevant background summary

1. At the time of the commencement of the proceedings the mother was living in the Darwin area.  She describes her usual occupation as being in administration.  She has had various placements with a government agency and was at the time of the trial working for the government agency in Darwin.

2. The mother was born in 1970 and is currently aged 44.

3. The father was born in 1984.  At the time of the trial he was aged 30.  He was employed as a driver by a government agency in Queensland.

4. The mother has two adult sons aged 24 and 21.  The mother says she is “close to” them.

5. The parties commenced living together in November 2005.  They married in March 2006.  The child was born in September 2006.

6. The parties separated in July 2010 (when the child was not quite four years old).  The parties were divorced in January 2012.

7. Since January 2012 the father has been in a relationship with Ms S.  They have continued to live together in Town A in Queensland.

8. After the child’s birth, the parties and the child lived for a short time in government housing near Town A.  In December 2007 the mother was posted to Darwin.  The parties moved to Darwin with the child. 

9. In May 2008 the husband’s employment with the mining industry created a situation where he worked for two weeks on and one week off.  He was not living at the home during the two weeks of work but returned for the week that he was not working.

10. In June 2008 the mother and the child moved back to Brisbane due to the mother’s employment with the government agency.  She returned to live in Town A with the child. 

11. The father remained working in his mining occupation and residing in Darwin until October 2008.  He then returned to Town A to reside with the mother and child.

12. The parties and child continued to live in the Town A area until the separation in July 2010.

13. The child remained in the care of her mother.  The child spent limited time with the father in the first few months of separation.

14. Thereafter from approximately late November 2010 until January 2012 the father spent alternate weekends with the child.  He also spent some time on Wednesday afternoons from approximately February 2011 until early January 2012.

15. The mother and child moved to Town B, NT in early January 2012 when the mother was posted there at short notice.

16. In January 2012 the father commenced his relationship with his current partner, Ms S.

17. As a result of the mother being posted overseas for a short period, the child lived with the father and various members of his family for approximately three weeks in late February/mid-March 2012.  Thereafter various arrangements were made by the parties for the child to spend time with the father and his family.

18. In early 2014 the mother was posted to Darwin.  The mother and child left Town A and have lived in Darwin since 9 January 2014.

19. On 23 January 2014 the mother telephoned the father.  A conversation took place about the mother’s plans and her relationship with Mr F, who is now her husband.  There is dispute as to the interpretation of the conversation which took place on this day during which the mother claims the father consented to her moving with the child to live in the USA.

20. From 25 March to 13 April 2014, the child stayed with the father whilst the mother travelled to the USA.  During this visit the mother married Mr F. 

21. The father maintained that he did not know the mother had been in the USA or that she had been married during that time.

22. The current husband of the mother, Mr F, was born in 1956 and is currently aged 58.  He works as a healthcare professional in Town C, South Carolina, USA.  The mother and her husband met on the website “…” in September 2013.  Mr F visited Australia in late December 2013 and early January 2014 when he proposed marriage.  He stayed in Australia for nine days.  At that time the child was spending time with her father and had not met Mr F.

23. Mr F and the mother were married in April 2014.  Mr F has a child by a previous relationship.  D was born in 2003.  His parents separated in October 2011 and were divorced in March 2013.  D lives primarily with his father.

24. The child spent time with the father from 18 June until 29 June 2014. 

25. There was a dispute about the amount of information given by the mother to the father about the visit to the USA in July 2014 until the trial.  The mother travelled with the child to the USA from 3 July 2014 to 28 August 2014.  The mother says this was just a holiday.

26. Arrangements were made for the child to spend time with the father from 28 August 2014 to 1 September 2014.  The Family Report interviews were conducted on 2 September 2014.  The child spent time with the father again from 3 to 5 September 2014 whilst he was in Darwin shortly before the trial.

Summary of orders sought and proceedings

1. The mother filed the Initiating Application on 27 May 2014.

2. The final orders which were sought in the Initiating Application were detailed.  By way of summary they provided for the mother to have sole parental responsibility for the child, that she be permitted to relocate the child’s residence to the USA and live with the child wherever she chooses in the USA, Canada or Australia.  It also provided for the mother to consult with the father about long term decisions, including education, religious and cultural upbringing and health.  The orders proposed provided for the father to be kept informed of long term issues by the mother and for the child to live with the mother.  There were then set out detailed, specific orders and conditions about the father spending time with the child and other ancillary matters.

3. In the final parenting orders sought at the time of the final hearing the orders sought were similar but also included an order that the child not spend time alone with Mr H (the partner of the maternal grandmother) and that neither party change the child’s citizenship.

4. At the commencement of the final hearing the mother sought orders which provided for the father to spend “up to 7 weeks with the child each year during the child’s USA school holidays”.  She sought other orders if she was not permitted to relocate from Australia to the USA.

5. Further detailed ancillary orders were also sought.

6. The father filed a Response to the Initiating Application and later filed an Amended Response to the Initiating Application on 4 September 2014.  In the amended response the father sought the dismissal of the application for orders sought by the mother.  He sought orders that the child live with him, that the parents have equal shared parental responsibility, that each of the parents have sole responsibility for day to day care at times the child is living with them.  The orders also provided for the mother to spend time with the child for six weeks in the USA during the Christmas school holiday each year and other forms of communication.  Upon the child’s tenth birthday it was sought that for a further period in the June/July school holidays the child also spend time in the USA with the mother.  The final orders sought by the father included injunctions restraining the removal of the child from Australia and consequential orders, together with orders in relation to schooling, medical assessments, medical issues and other ancillary orders.

7. The amended response also included the provision for orders to be made if the mother was permitted to relocate with the child to the USA, including time in Australia during the summer school break and June/July school break each year and upon the child’s tenth birthday “and subject to her schooling commitments”  a further period of four weeks in December/January each year.

8. Paragraph 31 of the final orders sought in the amended response of the father was as follows:

   In the event that the court determines that the mother can relocate [the child] to the USA, the Mother shall not do so without first obtaining Orders of the relevant State of the United States in which she is to live identical in effect to these orders and providing a sealed copy to the Father and filing a copy thereof annexed to an affidavit in these proceedings with the Family Court of Australia.

9. At the commencement of the final hearing on 9 September 2014 the Court was provided with orders upon which the parties had agreed.  These were divided into categories of “Consent Orders Agreed;  Orders sought irrespective of where the child is living; Agreed orders if the mother is permitted to relocate the child to USA;  Agreed orders if the mother is not permitted to relocate and Orders (interim) until judgement” (sic).

10. Following procedural directions the matter was listed for final hearing for three days commencing 9 September 2014 in Darwin.

11. On 7 August 2014, his Honour Justice Berman made interim orders providing for the child to spend time with the father and for the preparation of a s 62G(2) report by Family Consultant, Mr E.

12. The trial commenced on 9 September 2014 in Darwin when the mother was represented by Mr Barry and the father by Mr McGregor with Mr Carter.

13. The mother relied upon the Initiating Application filed on 27 May 2014, her affidavit of evidence in chief, the affidavit of the mother’s current husband, Mr F and the affidavit of Ms G, a friend of the mother’s (being the affidavits all of which were filed on 22 August 2014).

14. The father relied upon the Amended Response to the Initiating Application filed on 4 September 2014, the affidavit of evidence in chief filed on 27 August 2014 (in which specific reference is made to matters contained in the affidavit of the father on 16 June 2014 and his affidavit filed on 30 July 2014 to which are annexed text and Facebook messages between the mother and father), the affidavit of his solicitor, Mr Carter, filed on 20 August 2014 to which are annexed transcripts of telephone conversations between the parties, being conversations which took place on 19 May 2014 and 18 July 2014, the affidavit of Ms M, the paternal grandmother, the affidavit of Mr I, a friend of the father, the affidavit of Ms H, the maternal grandmother, and the affidavit of Ms S, the current partner of the father (all of which were filed electronically on 25 August 2014).

15. Pursuant to the orders of Justice Berman, the Court also received the Family Report of Mr E, dated 4 September 2014.

16. The Court heard the oral evidence of the mother, Ms G, Mr F, the father, his partner Ms S, the paternal grandmother and maternal grandmother and Family Consultant, Mr E.

17. The Court also received exhibits, including the CD which was the recording of the telephone conversations between the mother and father on 19 May 2014 and 18 July 2014, together with the transcript of those recordings.

18. The final orders sought at the commencement of the trial and in final submissions were detailed.  Both parties proposed that the child reside primarily with the mother and spend time with the father.  The main issue was whether the child was to live with the mother in Australia or the USA.

19. After hearing the evidence and submissions of counsel interim orders were made.

The Law

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) relates to children’s matters. Sections 60B, 60CA, 60CC, 61DA and 65DAA are significant in this matter.

   Section 60B

   Object of Part and principles underlying it

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( 60CA

Child's best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

Section 60CC

How a court determines what is in a child’s best interests

(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). 

Primary considerations

(2)The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). 

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). 

Additional considerations

(3)Additional considerations are:

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

(b)the nature of the relationship of the child with:

(i)     each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child);

(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child;

(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or

any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain person relations and direct contact with both parents on a regular basis;

(f)the capacity of:

(i)     each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

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

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j)any family violence involving the child or a member of the child’s family;

(k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)     the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)   any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)    any other relevant matter;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)any other fact or circumstance that the court thinks is relevant. 

Consent orders

(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3). 

Right to enjoy Aboriginal or Torres Strait Islander culture

(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture. 

Section 61DA

Presumption of equal shared parental responsibility when making parenting orders

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. 

Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B.  It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA). 

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b)family violence. 

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. 

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. 

Section 65DAA

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2)Subject to subsection (6), if:

(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;

the court must:

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a)the time the child spends with the parent includes both:

(i)     days that fall on weekends and holidays; and

(ii)    days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i)     the child's daily routine; and

(ii)    occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Consent orders

(6)If:

(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and

(b)the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;

the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).

(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.

Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

1. In this matter the parties have agreed that they will have equal shared parental responsibility, whether the mother is permitted to relocate with the child to the USA or remains in Australia.

2. Counsel for the father relied upon the decision of her Honour Justice Brown (as she then was) in the matter of Mazorski v Albright (2007) 36 Fam LR 518 and in particular those parts of the judgment which refer to the emphasis to be placed upon substantial parental involvement of both parents.

3. As the Full Court stated in Mulvaney & Lane (2009) FLC 93-404, it is not the relationship itself which is to be considered but rather the benefit to the child, if any, of maintaining such a relationship. This interpretation was recently affirmed in Jurchenko & Foster [2014] FamCAFC 127 at [123]:

   …the Act does not require orders to be made to ensure a child has a meaningful relationship with both parents.  Rather, it requires the court to consider the benefit to the child of having such a relationship.  We recognise that his Honour, at [78], spoke of framing orders for the child to have a meaningful relationship with both parents “if that is in their best interests”.  However, having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement.  All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests. 

4. The High Court decision of MRR v GR (2010) 240 CLR 461 dealt with the significant provisions of Part VII of the Act and considered the relationship between s 61DA and s 65DAA at [13]-[15]:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist…

   ….

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

5. The recent Full Court decision of Heaton & Heaton (2013) 48 Fam LR 349 considered the appropriate legislative pathway to be applied in relation to relocation cases. At paragraphs 37 and 38 the Full Court state that the trial Judge erred in his determination of the issue of equal shared time:

   37.…by conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway.  As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue.  His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC.  If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable.  He did not do this.

   38.These errors are such that the appeal must succeed.  As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers.  It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.

Evidence received and heard

Evidence of the mother

1. At the commencement of her evidence in chief the mother confirmed that she had taken steps to rescind her cessation of employment from the government agency and would be returning to work in Darwin on 4 October 2014.

2. Otherwise, the mother relied upon the evidence in her affidavit.  She was cross- examined at length by counsel for the father.  She confirmed that when Mr F had visited Australia from late December 2013 to early January 2014, the child was spending time with the father and had not met Mr F at that time.  She confirmed that Mr F had proposed to her on New Year’s Eve.

3. She was cross-examined about the time she had spent in person with Mr F before their marriage.  She said that before the marriage they had spent no more than 10 days together in December 2013/January 2014 and 11 days in March/April 2014.  She emphasised that this was only the time they had spent together in person.  She also said that the child and D (Mr F’s son), had not met in person until 3 July 2014 but had spoken to each other and communicated by the internet and Skype.  She confirmed that the move to Darwin, which took place on 9 January 2014, took place after she had accepted Mr F’s proposal of marriage and at a time when she was considering moving to the USA.

4. When asked about the risk of disruption for the child which might be caused by the moves to Darwin and then the possible later move to the USA, the mother gave evidence that the child was “very adjustable”.

5. During the cross-examination the mother was also questioned about the travel which took place for her and the child to the USA in late June early July 2014.  She maintained during the cross-examination that it was only for a holiday and that she had not “relocated”.  Nonetheless, she confirmed that during this time in the USA she had taken the child to a psychologist, Ms J, who had prepared a report.

6. During cross-examination the mother gave evidence about her discussions with the child about the proposals to move to the USA and with whom the child should reside.

7. During cross-examination the mother was also questioned about the remarks that the child had referred to Ms S “smacking her”

8. The mother conceded that the child was aware that she (the mother) was not fond of Ms S, but denied that she had ever told the child that she did not want the child to be around the father or Ms S.  She also denied that she was negative about Ms S in the presence of the child.

9. The mother was cross-examined at length about the telephone conversations she had with the father in January 2014, May 2014 and July 2014.  Exhibits were received which set out the copies of the text messages and recordings of the telephone conversations.

10. The mother denied that she had put any effort into convincing the child that she wanted to move to the USA or leave Australia.  The mother conceded that she was upset by all the proceedings and that she was in particular upset that the father had taken the child to his lawyer’s office.

11. I accept the evidence of the mother that she believed after the conversation with the father that he would not oppose her moving to live with the child in the USA.  She had interpreted his short comment “yep” as a consent to the arrangements.  (The father is now alleging that he was simply acknowledging that she was making that statement rather than agreeing to any arrangements).

12. The evidence of Ms G, a friend of the mother, was received.  As previously indicated her evidence in chief was contained in her affidavit.  She was cross-examined by counsel for the father. 

1. She indicated that she was listening to the conversation between the mother and the father about the mother’s plans to move to the USA.  She conceded that she could not remember what was said.  She insisted however that even though she could not recall the exact wording she maintained that she knew that the father had “not opposed” or had not said “no” to the mother’s proposed arrangements.

2. Mr F, the mother’s present husband, gave evidence.  He relied upon his affidavit.  He was cross-examined by counsel for the father.  He indicated that he has been the primary caregiver for his son D, since the separation and divorce from D’s mother.  He also agreed that the counsellor to whom the child had been taken had been providing counselling for D.  When questioned about the relationship between the child and D he gave appropriate answers in relation to the interaction between the two children.  When questioned about the arrangements for the child to attend counselling his answers related to what he considered to be the benefit of the overall family. 

3. His evidence was not significantly challenged.  He displayed an appropriate awareness of the issues concerning the child and his son.

Evidence of the father

1. At the opening of the father’s case the Court received Exhibit 4, which is a CD and transcript of conversations between the father and the mother.

2. The father relied upon his affidavits.  He was cross-examined by counsel for the mother.  He conceded that until the last six months there had been a generally good relationship between the mother and the father’s family and that the child had maintained a good relationship with her brothers.

3. During this cross-examination the father agreed that he was confident the mother can make good decisions concerning the welfare of the child.  He was comfortable with her past decisions apart from the issue of relocation.

4. The father conceded that the issues concerning ongoing communication between himself and the child have been dealt with by the proposed orders.

5. During the cross-examination about the telephone conversations with the mother about her plan to move to the USA the father maintained that when he said “Okay” he was just acknowledging what the mother was saying, not agreeing to it.  When asked whether he could see why she thought he had agreed, he replied “Suppose so”.

6. The father conceded the mother’s interpretation of his conversations was a possibility.  He also conceded that the times he spent with the child were not significant during some periods.

7. During cross-examination the father also conceded that his mother had won “just shy of” a million dollars in 2001 and had provided him with money.  He conceded that his mother would financially support him.

8. The father’s current partner, Ms S, gave evidence.  She relied upon her affidavit and was cross-examined by counsel for the mother.  She agreed she had told the Family Consultant that the mother was “a great mum”.  She conceded also that the conversations between the mother and father could have been misinterpreted.  She maintained that the father would not agree to anything until he saw the proposal in “black and white”.  While she conceded that she would help the father financially, she maintained that it would be extremely challenging.

9. The father relied upon the evidence of his mother, Ms M.  During her oral evidence she made some corrections to her affidavit.

10. During her cross-examination she conceded that she had previously had a good relationship with the mother and hoped that it would return to be so again.  She also conceded that she had previously, regularly Skyped with the child but since the litigation commenced that had not occurred.  

11. The father relied on the affidavit of Mr M, his mother’s husband.  He was not required for cross-examination.  The affidavit describes the child, his relationship with her and his opinions of the child’s relationship with others.

12. The father relied upon the evidence of Ms H, the maternal grandmother.  During cross-examination she conceded that she did not have a good relationship with her daughter at the moment.  She conceded that the mother was a good mother.

13. Mr E, who prepared the Family Consultant’s report is a forensic psychologist in private practice.  The Family Report is dated 5 September 2014.  Mr E prepared the report after interviewing the parties, Ms S, a Skype interview with Mr F and a telephone interview with Ms M.  He also undertook an observation of the child with both of the parents and had follow up brief telephone interviews with each of the parties.

14. The Family Report contains relevant background to the dispute, the current arrangements, and the proposals of the parties and a summary of issues in dispute.

15. In the section commencing at paragraph 28 of the report, Mr E set out the information gained from the interviews with each of the parents.  Paragraph 28 states:

    The parents appear to have maintained a relatively cooperative and supportive relationship in their parenting of [the child] over the course of time and they do not appear to be motivated in the current dispute by unresolved relationship issues.  There are instances since separation when they have displayed a capacity to negotiations and cooperate in making decisions about [the child].  This has not been without difficulty, and some degree of angst, but it appears that they are able to focus upon [the child’s] needs and interests and parent together with relatively little acrimony.

16. When referring to the mother and her proposals, Mr E said at paragraph 29:

    [The mother] presented as an intelligent, thoughtful woman who enjoys a very close relationship with [the child] as a result of having been [the child’s] her (sic) primary carer.  [The mother] gave the impression of being devoted to [the child] and as desperate to include [the child] in the new life she aspires to with Mr [F].

17. At paragraph 38 the father is described as follows:

    [The father] presented as a quiet, reserved individual who desires to remain a significant presence in the life of [the child] and continue to maintain and develop his relationship with her.  He believes that if [the child] is permitted to relocate to the USA then his relationship with [the child] will suffer and that the relationship will be diminished over time.

18. In the detailed report about the father’s proposals and concerns the report contains the following at paragraphs 50 and 51:

    50.Apart from noting a degree of instability in the mother’s lifestyle, [the father] voiced no significant concerns as to the mother’s parenting of [the child].  He described the mother as loving and protective and as “wanting the best” for [the child].  He expressed some concern about the mother’s decision-making and “not making the right choices” for [the child], but otherwise viewed her as a parent who would do “the right thing” for [the child].

    51.[The father] described [the child] as a normal, healthy child and said that apart from the impact of the current dispute upon her he had no concerns as to her overall adjustment and development.  He believed that if [the child] were to live in the USA she would “make the most of it” describing her as an “adaptable” and as able to easily make friends.

19. The report also contains the reference to “significant others” being Mr F, Ms S and Ms M.

20. The report contains considerable discussion of the interviews with the child and the observations of the child with each of the parents.

21. In particular, in paragraph 76 the report contains the following:

    [The child] was well aware of the dispute between her parents about whether or not she should live in America.  In discussing this issue [the child] emphasized that she wanted to live in America with her mother, Mr [F] and [D]. …

22. Part of the final section of the report under the heading of “Evaluation” contained the following:

    82.In considering the parents’ competing proposals the fundamental issue for the Court to determine in the first instance is whether [the child] should live with the mother or the father.  The father has indicated that even if the mother’s proposal to relocate is denied by the Court he would still ask the Court to make an order for [the child] to live with him.  In considering this issue I am inclined to believe that the mother has cared for [the child] to at least an adequate standard and that [the child] has done reasonably well in the care of her mother.  It is also noted that the father offers little in the way of criticism of the mother’s parenting beyond stating that she makes poor decisions, or decisions he does not agree with, and that this compromises [the child’s] better adjustment and development.  He refers to the mother’s instability and notes that in the 4-years since separation the mother has relocated from [Town A in Queensland] to the Northern Territory on two occasions and now seeks to relocate to the USA with [the child].  In all other respects the father describes the mother as having a loving relationship with [the child] and says that she is protective of [the child] and will generally do “the right thing” for [the child].

    83.In considering the issue of which parent [the child] should live with it is noted that the mother has been the primary carer of [the child] and that [the child] has a loving and positive relationship with her.  Her relationship with the mother appears to be closer than the relationship she has with her father due to the extent of the bonding and attachment that has taken place between them.  While acknowledging that the issue of stability is a concern, to some extent, and in light of the above observations, I am inclined to think that [the child’s] best interests are more likely to be served by an order that provides for her to continue to live with her mother.  The mother acknowledged the father’s concern regarding instability and reported that she is currently seeking to address this issue, asserting that [the child] would have far greater stability if she were living with Mr [F] in the USA, but also noting that she would remain living in Darwin and continuing with the same routines if [the child] was not permitted to relocate.  It should also be noted in relation to this issue of instability that the parents both view [the child] as an adaptable, out-going child who deals with change relatively well.

    84.Generally, I am of the opinion that the mother is a capable parent who has cared for [the child] to a reasonably good standard since separation.  This is not to diminish the contribution made by the father or his capacity to parent.  However, in light of the assessment above, and particularly in light of [the child’s] views and the nature of the relationship that she has with each of her parents, I am inclined to believe that [the child] should live with the mother and that the reversal of the current parenting arrangement as proposed by the father is not warranted in the current circumstances.

    85.The next issue for the Court to determine is the matter of international relocation.  In considering this issue there are competing “for and against” arguments that can be mounted by each of the parties.  The factors weighing against relocation, for example, can be stated as follows:

    a.The father’s relationship with [the child] would be diminished through a lack of direct contact with [the child] over time.

    b.The relationship of [the child] with extended family members, including the maternal grandmother and Ms [S] would also be diminished by a lack of direct contact with [the child] over time.

    c.Communication via Skype or telephone is a relatively poor substitute for direct face-to-face interaction and the bonding that is promoted through caring physical interaction.

    d.The relationship between the mother and Mr [F] is newly formed and has not been tested over the course of time leading to concerns about the viability of the marriage and issues arising from the formation of a blended family.

    e.The viability of future contact arrangements may be open to question.  The mother has agreed to meet the full cost of [the child’s] travel even though she has indicated that she would not be working, and presumably the cost of this travel would be dependent upon Mr [F] being willing to meet the cost of this travel.  The father has also indicated that he does not have the money to travel to the USA to spend time with [the child].  The mother also asserts that [the child] does not want to spend lengthy periods of time with the father and Ms [S].  Collectively, these observations suggest that caution is perhaps required when considering the viability of future contact arrangements.

    f.The mother would most likely cope with an adverse decision, and although deeply disappointed, she would continue to care for [the child] as she has done in the past, noting that the mother has on-going employment and housing available to her in Darwin and has some degree of social support in Darwin.

    86.The factors weighing in favour of relocation are stated as follows:

    a.[The child] is an adaptable, out-going young girl who is relatively good at dealing with change and will make friends where ever she lives.

    b.The mother has been [the child’s] primary carer and is best placed to understand and respond to [the child’s] needs.

    c.The mother would possibly be happier and more satisfied with life if able to be with her husband, and would be more available to [the child], and this would constitute an improvement in the mother’s parenting capacity.

    d.[The child] has expressed a view to the effect that she would like to relocate to the USA – though this needs to be considered in light of her young age and the broader family context.

    e.[The child] has had some brief experience of living in the home of Mr [F] and [D], as well as attendance at a prospective local school, and has responded positively to this experience.

    f.A denial of relocation would possible (sic) lead [the child] to feel angry and thwarted by her father’s opposition to the relocation and this could impact upon the quality of the father-child relationship and her willingness to spend time with her father.

23. The report then contains paragraphs detailing the factors concerning a relocation.  In conclusion paragraphs 88 and 89 state:

    88.As noted earlier this is a difficult, finely-balanced matter for the court to determine and I am unable to offer a clear, unambiguous recommendation to the Court in relation to the issue of international relocation.  To do so would be to extend my expertise beyond its recognized limits and to proffer subjective views based on personal opinion rather than my recognized expertise.  Generally, it is my view that a decision upon international relocation is required by the Court based on an evaluation of the evidence provided by the parties, the testimony of witnesses in court, and the application of judicial discretion.

    Recommendations

    89.In considering all of the issues involved in this case I am unable to offer a clear, unqualified recommendation regarding future parenting arrangement particularly in relation to the issue of relocation.  If required I will be available to elaborate upon the views and opinions contained in this report by giving evidence in court at the time of final hearing.

24. When cross-examined by counsel for the parties, Mr E did not agree that he was concerned about the quick relationship formed by the mother and her husband over the internet, but noted it was a brief relationship before the marriage.

25. His oral evidence included his view that the child had the capacity to form a considered view about her future plans, but also conceded that the idea of moving to the USA may have been “sold to [the child] by the mother and her partner”.

26. When questioned whether he was concerned about the mother marrying Mr F before Mr F’s child D and the child had met each other, he conceded that he thought it was “unusual”.

27. Mr E agreed that the child appeared intelligent and adaptive.  He conceded that if there was time spent between the father and the child more than once per year that the relationship between the father and the child would not be as diminished.  He also conceded that because the child had spent some time in the USA, even for a holiday period, the child had some experience of what was being proposed.

Discussion and Findings

1. The parties have agreed that the orders should provide for the parents to have equal shared parental responsibility.  It is therefore necessary to consider whether the child spending equal time with each of the parents would be in her best interest and whether spending equal time with each of the parents is reasonably practical.

2. The agreed proposal of the parties do not provide for equal or significant time for the father to spend with the child.

3. Taking into account the distances involved, whether the child moves to the USA or remains in Australia, it is not in the child’s best interests to spend equal time with each of the parents because of the difficulties this would cause for both households and the disruption for the child.  In any event, even if spending equal time with each of the parents was likely to be in the child’s best interests (after considering the factors in s 60CC) the Court must consider whether spending equal time with each of the parents is reasonably practical.  In this case clearly the difficulties of travel and distance would mean that it would not be reasonably practical.

4. Similar considerations occur in relation to the child spending substantial and significant time, both in relation to the child’s best interest and reasonable practicability.

5. The decision concerning what is in the child’s best interest require the Court to take into account all of the matters in s 60CC.  The primary considerations to be considered are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  In this matter the parties do not allege any risk of harm to the child.

6. The parties accepted that there was a significant benefit for the child to have a meaningful relationship with both of the parents.  This was not an issue.

7. There will be a benefit to the child of having a meaningful relationship with both the mother and the father. 

8. I am satisfied that this benefit of a meaningful relationship can be maintained whether the child resides in Australia or the USA. 

9. The Court is also required to consider the additional considerations set out in s 60CC (3). 

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

10. The views expressed by the child indicate that she prefers to live with her mother.  She was happy with the idea, and supported the proposal, to move to live in America.  These views however need to be taken into account considering the child’s young age and the possible direct or indirect influence of the mother.  Her views must also be taken into account considering that the time she has spent in the USA and with Mr F and D has been a limited time and could be considered as a holiday.

11. The child’s views should also be considered in light of the assessment of the Family Consultant who considered the child to be an “adaptable and outgoing young girl”.

    (b) the nature of the relationship of the child with:

    (i)each of the child's parents; and

    (ii) other persons (including any grandparent or other relative of the child);

12. This is a significant factor in this matter.  The mother has been the primary care giver for the child for a considerable part of the child’s life and in particular the recent period.  All of the evidence indicates that there is a close loving, strong mother / child relationship between the child and the mother.

1. The evidence indicates that the father has a good relationship with the child.  He has not spent as much time caring for the child as the mother.  The difficulties in distance and the practical arrangements have meant that at times the father’s time with the child has been limited.

2. I am also satisfied that the child has a good relationship with Ms S, even though from time to time she has made negative comments about Ms S.

3. The child has only spent a short period of time in the company of Mr F and D.  Although it appears that during that time they have enjoyed a good relationship that cannot be considered significant at this time.

4. The child has from time to time maintained a relationship with her family such as the paternal grandparents, her step-brothers (the mother’s adult sons) and other extended family.

5. In conclusion therefore the most significant relationship for the child is that maintained with her mother which is a strong, loving relationship.

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   i)to participate in making decisions about major long-term issues in relation to the child; and

   ii)to spend time with the child; and

   iii)to communicate with the child;

6. The mother raised some criticism about the father’s participation in the past.  I am satisfied that this is not a significant factor.  From time to time the parties were living some distance apart.

7. There were no significant submissions put to the Court nor was there any evidence which indicated that s 60CC (3) (ca) was relevant.  (The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child).

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

8. This is a significant factor to be considered.  The strong, loving relationship between the child and the mother and the child’s adaptability indicates that there will be some but limited effect on the child if she moves to live with the mother and Mr F in the USA.  The child has also been accustomed to changing her place of residence due to the mother’s employment arrangements.

9. The proposed change in circumstances of the child moving to the USA will have an effect upon the child’s relationship with the father.  Although the time together in person will be reduced this does not necessarily mean that the relationship will suffer particularly if electronic communication is maintained.

10. There is also likely to be a reduction in the amount of time the child can spend with other extended family in Australia if she were to move from Darwin to the USA.  However, these relationships can also be maintained by the visits to Australia and electronic communication.

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

11. Clearly the distance between Australia and the USA creates a practical difficulty and expense for the child to spend time with the father and her extended family and communicate with them.

12. There is in any event some practical difficulty and expense if the child remains in Australia living with her mother in the Northern Territory.

13. The evidence however indicates that practical difficulties, such as the length of travel and the expense of the travel, are not factors which should be determinative.  I take into account the financial circumstances of both of the parties and the proposed arrangements for the child to spend time with the father whether she lives in Australia or the USA.

    (f)the capacity of:

    (i)each of the child's parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    and

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

14. Both parties indicated that they believed the other party had the appropriate capacity to provide for the child’s needs.  The father and Ms S both referred to the mother as a good mother.  Their evidence suggested that they were satisfied that she would make appropriate decisions concerning the child’s needs.

15. The mother was however criticised for the decision she made concerning her relationship with Mr F and the travel arrangements made by her.

16. The mother’s attempt to explain her travel with the child to the USA immediately before the trial hearing, notwithstanding the undertaking given to the Court, was criticised by the father.

17. The evidence indicated that the mother was not fully frank with the Court or the father about the planned trip just before the trial.  The mother maintained that this was just a “holiday” and not a “relocation” however, the failure to inform the father is a factor which calls into question the mother’s attitude to her responsibility as a parent.

18. The mother’s decision to marry Mr F at a time when the relationship between Mr F and the child and between the child and D had not been tested also impacts on her capacity to provide for the child’s emotional and psychological needs and her attitude to her parental responsibilities.

    (g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

19. The mother’s background and lifestyle has involved frequent moves interstate.  The child has travelled and moved homes with the mother.  The Family Report indicates that the child has developed well and has been adaptive to these changes.

20. Subsection (h) is not relevant.

    (j)any family violence involving the child or a member of the child's family;

21. Whilst there was some evidence concerning the child being “smacked”, it was submitted that the incident was not a significant factor.  Taken in the context of the evidence as a whole the limited brief incident is not material to determining the child’s best interests.

22. Subsection (k) not relevant.

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

23. It is usually preferable to make an order which is least likely to lead to further proceedings.  Both parties have proposed detailed orders to apply by way of final orders setting out arrangements for the child to spend time with the father, communicate with the father and other arrangements.

    (m)any other fact or circumstance that the court thinks is relevant;

24. The father’s counsel raised issues about the mother’s right to reside in the USA.  Her marriage to Mr F and her application to this Court suggests that she will be able to reside with Mr F and the child in the USA.

25. The father in particular sought an order that if the mother was permitted to relocate to the USA she should be required to obtain an order in the jurisdiction in which she is residing which would mirror the orders of this Court.  There was however limited information before this Court as to the capacity of the mother to simply register the order in the appropriate jurisdiction or readily obtain a court order.  It is in the child’s best interests to ensure, so far as possible, that the orders of this Court are recognised and obeyed.

26. Taking into account all of the provisions of s 60CC and the requirements of s 65DAA it is therefore not in the child’s best interest to spend equal time or substantial and significant time with each of her parents.

27. It is clearly in the child’s best interest that she remain living with her mother.

28. I am also satisfied that it is in the child’s best interest that the mother be permitted to move with the child to live in the USA.  The child will continue to enjoy the ongoing, loving relationship with her mother.  The mother’s capacity to provide for the child and maintain a loving relationship will be increased if the mother is able to maintain her relationship with Mr F in the USA.

29. The best interests of the child will be maintained and improved if the mother is able to continue her relationship with Mr F in their planned home in South Carolina.

30. Whilst the frequency of time the child spends with the father will be reduced, nonetheless, the arrangements that can be made for the child to communicate with and spend time with her father are likely to maintain the relationship which currently exists between father and child.  The child will continue to enjoy the benefit of a meaningful relationship with her father and her extended family. 

Conclusion and Orders

1. Considering all of the relevant factors including the equal shared parenting, agreed orders and the best interests of the child as the paramount consideration it is in the child’s best interests for the mother and the child to be permitted to live in the USA.

2. The parties proposed and agreed that the following orders be made irrespective of where the child is living:

   1.That all previous orders shall be discharged.

   2.That the child shall not spend time alone with [Mr H] (the partner of the maternal grandmother).

   3.That neither party shall change the child’s citizenship.

   4.That if the parties are not living within two hours drive of each other, the parent with whom the child is living shall email the other party photographs of the child and an update about the child, at least once every 2 months.

   5.That the child shall be at liberty to speak with either parent or [Ms S] or [Ms F] on the telephone, skype or similar at all reasonable times and each parent shall facilitate the child speaking to the other parent at all reasonable times in a reasonable manner.

   6.That the parties will keep each other promptly informed as to any emergency, serious illness or serious medical concerns in relation to the child in a timely manner and if there are any matters of an urgent nature, the parent who has the care of the child will notify the other parent immediately.

   7.That each parent shall be entitled to obtain copies of the child’s school and health-care records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

   8.That neither parent will denigrate the other, or either party’s family members, in the presence or hearing of the child, nor shall either party involve the child in discussions about any conflict between the parties.

   9.That except as otherwise provided in these orders, the child shall be permitted to travel interstate and/or overseas with either of the parties whilst in their respective care provided that the party with whom the child is to travel provides to the other party not less than 14 days’ notice and provides itineraries, return plane tickets, contact addresses and telephone numbers for the child whilst they are interstate and/or overseas so that the child can communicate with the other party at all reasonable times, and further:

   a.Neither party shall permit the child to travel interstate or overseas on school days, unless otherwise agreed in writing;

   b.subject to any further order of this Court overseas travel not to occur without the prior written consent of the other party and such consent not to be unreasonably withheld.

   10.That neither party shall take the child to any country that:

   a.has a current Australian Government warning which recommends against persons travelling to that country for tourism or like purposes;  or

   b.is not a Hague Convention country, with the exception of Indonesia.

   11.That should either party refuse to sign a passport application this order shall serve as an authority of that party, for the purpose of a passport application.

   12.Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within 3 days of any change.

   13.That the child’s grandmother and [Mr M] may telephone or skype the child at any reasonable time.

   14.That when travelling on a plane the child shall be accompanied up until an age agreed to by the parties.

3. I will therefore make those orders.

4. The following were “Agreed orders if the mother is permitted to relocate the child to the USA”:

   15.That the child shall live with the mother and the mother shall forthwith be permitted to relocate the child’s residence to the USA.

   16.That the parties shall have equal shared parental responsibility except as to the issue of the child’s schooling and further in relation to the child’s schooling the mother shall consult the father and make best endeavours to reach agreement with him in relation to where the child may be enrolled.

   17.That, subject to these orders, during school holidays the father may spend up to 7 weeks with the child each year during the child’s USA school holidays.

   18.That the father shall only spend the time with the child outlined in order 17 if he complies strictly with the following:

   a.That the father notifies the mother of his intention to spend time with the child pursuant to these orders at least 2 calendar months before the child is due to travel to the father, and specifies the exact dates that he seeks to spend time with the child;  and

   b.That the child is returned to the mother in Brisbane at least one week before the child is due to commence school;  and

   c.That the father shall notify the mother where the child shall be staying if the child is not staying at the father’s residence for more than 48 hours when the father is spending time with the child.

   19.That the mother shall pay for and arrange the child’s travel to and from the father’s residence in QLD, and accompany the child on her flights to and from the USA for as long as it is necessary to accompany the child.

   20.In the event that the father or his immediate family travels to the child’s place of residence, upon giving the mother 30 days’ notice, the father or his immediate family may spend liberal time with the child as agreed between the mother and father but the child must be returned on a weekend by 12 noon the day before school commences unless the parties reach agreement about the father spending overnight time with the child.

   21.That should the father visit the location where the child is residing, the father may spend liberal time with the child, at times agreed between the parties.

   22.The Mother and Father shall jointly together explain these orders made to [the child].

5. I will therefore make those orders.

6. The father proposed that if the Court permitted the mother and the child to move to the USA the mother should be ordered to first obtain an order “identical in effect” to the Court’s orders in the relevant state of the USA.  The mother proposed that “either party may obtain” such an order.

7. As indicated earlier in this judgment the Court did not receive adequate information or properly qualified opinion as to the ability of either party to register this Court’s orders or the steps needed to obtain such “mirror” orders.

8. If the mother is permitted to relocate, a parenting order made in this Court may be enforceable in the USA. Section 70M of the Act provides that an order of the Family Court of Australia may be registered in a “prescribed overseas jurisdiction”. Schedule 1A to the Family Law Regulations 1984 (Cth) (“the Regulations”) lists South Carolina as a prescribed overseas jurisdiction for the purposes of s 70M. Accordingly, the father could follow the procedure outlined in regulation 24 and request that a Registrar of this Court send a copy of the orders to the appropriate court or authority in South Carolina.

9. For the above reasons I therefore make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 February 2015.

Associate: 

Date:  11 February 2015