Aldrich & Harling
[2023] FedCFamC2F 606
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aldrich & Harling [2023] FedCFamC2F 606
File number(s): NCC 141 of 2022 Judgment of: JUDGE BETTS Date of judgment: 12 May 2023 Catchwords: FAMILY LAW – Parenting – final orders – one child, aged 4 years old – whether the child should continue to live with the Father in the City B area or relocate with the Mother in the Town C area – where the Mother and Mother’s partner have misled the Court as to the reasons behind the relocation and future plans – where the Mother applied coercive pressure on the Father to consent to the relocation – where there are concerns about the Mother’s capacity to facilitate a relationship between the Father and child should the child live with the Mother – best interests of child to live with the Father. Legislation: Family Law Act 1975 (Cth) Cases cited: Adamson & Adamson (2014) FLC 93-622
MRR & GR (2010) FLC 93-424
U & U [2002] 211 CLR 232
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 225 Date of last submission/s: 10 May 2023 Date of hearing: 8, 9 and 10 May 2023 Place: Newcastle Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Gianacas Argiris McDonald Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Conditsis Lawyers ORDERS
NCC 141 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ALDRICH
Applicant
AND: MS HARLING
Respondent
order made by:
JUDGE BETTS
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.All prior parenting Orders be discharged.
Parental responsibility
2.The Mother and Father have equal shared parental responsibility for the long-term decisions relating to the care, welfare and development of X born 2018 (herein after referred to as “X”).
Live with
3.X is to live with the Father.
Spend time arrangements
4.X is to spend time with the Mother as agreed between the parties but failing agreement as follows:
(a)During 2023 school terms:
(i)10 July to 31 July 2023;
(ii)28 August to 18 September 2023; and
(iii)16 October to 6 November 2023.
(b)2023 Christmas Holiday period:
(i)For a three (3) week period ending two (2) clear days before X starts school.
(c)In the event that the Mother is able to travel to the greater City B region the Mother provide the Father with 28 days written notice of the dates she intends to be in the greater City B region and X will spend time with the Mother as agreed between the parties.
(d)Such further and other time as may be expressly agreed in writing between the parties.
(e)Once X commences primary school in 2024 as follows:
In School Term Holidays 1 and 3:
(i)From the first Saturday of the holiday period until the second Monday.
In School Terms Holidays Term 2:
(ii)Odd Numbered Years – From the first Saturday of the holiday period until the second Saturday of the holiday period; and
(iii)Even Numbered Years – From the second Saturday of the holiday period until the last Saturday of the holiday period.
Christmas Holiday Periods:
(iv)Even Numbered Years – from the first Saturday of the holiday period until 7 January; and
(v)Odd Numbered Years – from 7 January until the last Saturday of the holiday period.
Additional time:
(vi)In the event that the Mother is able to travel to the greater City B region, that the Mother provide the Father with 28 days written notice of the dates she intends to be in the greater City B region and X will spend time with the Mother as agreed between the parties.
Changeover
5.That changeover will occur by the parties, or their nominees known to the child, meeting at Brisbane Airport at the nominated times, noting that any desired change to the changeover location or time must be agreed by both parties in writing.
Telephone contact
6.The Mother and Father are each at liberty to communicate directly with the child through electronic means such as telephone or Facetime at all reasonable times and intervals.
Current contact details
7.That the Mother and Father must keep each other informed of:
(a)Their respective residential address.
(b)Any mobile telephone numbers and/or email addresses that each of them has available from time to time.
(c)At least one telephone number at which they can each be contacted at all hours.
(d)The Mother and Father must notify the other in writing or by text message of any change of such particulars within 24 hours of change.
Medical
8.Each party shall notify the other of any medical emergency, illness or injury suffered by the child in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
School information
9.That both parents be permitted to liaise directly with the child’s school and/or day-care and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress. Each parent is at liberty to provide a copy of these Orders to the child’s school.
International Travel
10.That pursuant to section 65Y(2) of the Family Law Act the Mother and Father be permitted to remove X from the Commonwealth of Australia during that parent’s time with X subject to compliance with the following Orders:
(a)any such travel does not exceed more than 21 consecutive days or non‑consecutive days per calendar year with each parent;
(b)unless otherwise expressly agreed in writing by the parents and subject to the approval of X’s school, any period of proposed international travel will take place during the school holidays as exercised by the school that X attends;
(c)no less than 42 days prior to the departure date the travelling parent must provide the non-travelling parent with details of the international travel including the proposed itinerary;
(d)the travelling parent is to use their best endeavours to facilitate X having reasonable telephone and/or skype and/or email communication with the non‑travelling parent while they are overseas.
11.The Father is to hold X’s passport and release to the Mother upon compliance with the above Orders and the Mother must return X’s passport to the Father within seven (7) days of returning to Australia.
In the event that the Mother lives within a 50 km radius of the City B area:
12.That X live between the parents in a shared care arrangement as follows:
(a)By consent, each alternate week from 9.00am (or the commencement of school) on Friday until 9.00am (or the commencement of school) on the following Friday.
(b)During Christmas School Holidays as follows:
(i)Even Numbered Years – from 12.00 noon on the first Saturday of the holiday period until 12.00 noon on 7 January with the Father and from 12.00 noon on 7 January until 12.00 noon on the last Saturday of the holiday period with the Mother; and
(ii)Odd Numbered Years – from 12.00 noon on the first Saturday of the holiday period until 12.00 noon on 7 January with the Mother and from 12.00 noon on 7 January until 12.00 noon on the last Saturday of the holiday period with the Father.
Changeover
13.By consent, that changeover will occur by the parties, or their nominees known to X, at X’s school either collecting or delivering her at the nominated times, noting that any desired change to the changeover location or time must be agreed by both parties in writing.
14.By consent, in the event that changeover is unable to occur at X’s school, changeover take place by the parent who has care of X, delivering her to the other parent’s residence at the conclusion of the time.
Father’s Day
15.By consent, if Father’s day falls on a weekend when X is not already spending time with the Father, X will spend time with the Father as agreed between the parties but failing agreement from 5.00pm on the Saturday before Father’s Day until 5.00pm on Father’s Day.
Mother’s Day
16.By consent, if Mother’s Day falls on a weekend when X is not already spending time with the Mother, X will spend time with the Mother as agreed between the parties but failing agreement from 5.00pm on the Saturday before Mother’s Day until 5.00pm on Mother’s day.
X
17.By consent, that X spend time with the parent they would not ordinarily be with on her birthday as agreed between the parties but failing agreement, from 5.00pm to7.00pm if the birthday falls on a school day and from 12.00 noon until 4.00pm if the birthday falls on a non-school day.
International Travel
18.That pursuant to section 65Y(2) of the Family Law Act the Mother and Father be permitted to remove X from the Commonwealth of Australia during that parent’s time with X subject to compliance with the following Orders:
(a)any such travel does not exceed more than 21 consecutive days or non-consecutive days per calendar year with each parent;
(b)unless otherwise expressly agreed in writing by the parents and subject to the approval of X’s school, any period of proposed international travel will take place during the school holidays as exercised by the school that X attends;
(c)the travelling parent must provide the non-travelling parent no less than 42 days prior to the departure date with details of the international travel including the proposed itinerary;
(d)the travelling parent is to use their best endeavours to facilitate X having reasonable telephone and/or skype and/or email communication with the non-travelling parent while they are overseas.
19.The Father is to hold X’s passport and release to the Mother upon compliance with the above Orders and the Mother must return X’s passport to the Father within seven (7) days of returning to Australia.
20.Each parent bear their own costs of and incidental to the proceedings.
21.The proceedings be removed from the list of Active Pending Cases.
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 the pseudonym Aldrich & Harling has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
OVERVIEW:
These are parenting proceedings concerning a young girl, X born 2018, who is presently four (4) years of age. X is the daughter of the applicant father in these proceedings, Mr Aldrich, and the respondent mother, Ms Harling.
The parties married in 2015. They had an older child, Y, who was born in 2016. Tragically - and through no fault of anyone - Y passed away in 2019, and some months later the marriage between the parties broke down.
The mother and father commenced living separately from February 2020, essentially in an equal time arrangement, although the details of that are somewhat sketchy. The parties had been able to make these arrangements work very well for X; indeed I suspect the parties would never have come to this Court but for the issue that has become controversial between them - namely the mother's wish to relocate X to Town C in Queensland.
The mother lives in Town C with her partner, Mr E, and their twins, V and W, born 2022. The mother moved there with Mr E in early 2022, and she has been wanting X to live in Town C with her ever since that move, and indeed prior to the move she was pushing the father to agree to this occurring but he did not.
Since the mother moved to Town C, X has been primarily living with the father, but spending substantial time with the mother. The issue that the parties now require me to determine is where X should live on a long term basis going forward; that is to say should X continue living with her father in the City B region, or should she move to the Town C region to live with her mother?
This case was very much conducted as a dispute about who should be X's primary carer; and questions concerning relocation and relevant case law also arose.
THE HEARING:
The matter proceeded to hearing before me this week on 9 and 10 May.
At the hearing the father was represented by Mr Duane of counsel and the mother was represented by Mr Willoughby of counsel.
The father read and relied upon:
·his Case Outline filed 5 May 2023;
·his Amended Initiating Application filed 9 May 2022;
·the father's trial affidavit filed 6 April 2023;
·the interim orders made by an SJR on 17 March 2022; and
·some interim orders made by his Honour Judge Dunkley on 13 October 2022.
The mother read and relied upon:
·her Case Outline filed 5 May 2023;
·her Response filed 17 February 2022;
·the mother's trial affidavit filed 17 April 2023. This was apparently filed late due to some sort of typographical issue, but nobody raised any objection about that and so leave to rely upon that affidavit was granted;
·the affidavit of Mr E filed 12 April 2023; and
·the affidavit of the maternal grandmother filed 13 April 2023.
The parties also relied upon a Child Impact Report prepared on 12 September 2022 by Court Child Expert Ms D, which became exhibit 1.
The mother tendered a further short proof of evidence from the maternal grandmother which became exhibit 2.
At the conclusion of the trial the mother tendered a draft order which provided for various eventualities; this became exhibit 3. The father responded by putting ticks or crosses on various of the orders sought by the mother and that document became exhibit 4.
It would be fair to say that many of the machinery orders were agreed, although the father preferred his form of orders in particular in relation to the school holiday periods and how they should be divided. But fundamentally, as I indicated earlier, the case really was conducted as a dispute about where the child should primarily live, and that will be very much the focus of these reasons.
CHRONOLOGY OF EVENTS:
The father:
The father was born in 1981 and is turning 42 this year. He has lived in City B since 2008, and he works in local government, City F being a city which is relatively close to City B, perhaps reasonably described as being part of the "City B region". He earns a lucrative income of around $210,000 per year in this employment which commenced in mid-2012. He has a degree of flexibility in his employment in that he can take time off work each week to be able to spend time with X if needed. He can also work from home, in that sense that he can undertake work after she has gone to sleep. He works 35 hours per week in accordance with the conditions of his employment.
The mother & her partner:
The mother was born in 1988 and turns 35 this year. She is available on a full-time basis to care for X because at present she is essentially a "stay-at-home mother" looking after the needs of her twins V and W. The mother does have work qualifications in the beauty industry and she has previously worked in administration when she was in the City B region.
The mother's partner, Mr E, works in primary industry near a town called Town G, over two hours from Town C. He presently works to a roster such that, effectively, he works an 87 ½ hour week. This would not be apparent from reading his affidavit, nor would it be apparent from reading the mother's affidavit. As will be seen, both the mother and Mr E attempted to mislead the Court in relation to Mr E's employment circumstances.
The relationship between the parents:
I return then to the circumstances of the parties during the relationship.
When X was less than a year old the parties placed her into day-care. This was a joint decision on their part, as each of them was working. Neither of them wanted the child to attend day‑care on a full time basis.
The father conceded that during the relationship the mother was X's primary carer; he was an involved parent. I accept the mother's evidence that she had essentially supported the father's career ambitions during the relationship and willingly taken on the primary care role.
Post-separation parenting arrangements:
After the parties' relationship broke down, they remained living under the same roof for a couple of months and the parenting arrangements continued much as they had before. The parties then each obtained their own accommodation and they reached an amicable agreement: the mother would have X from 8 am on Sunday to 5 pm on Wednesday, being 3 nights per week; the father would have X from 5 pm Wednesday to 8 am Sunday, being 4 nights per week. On paper this looks like the father was spending more time with X, but in practice that was not the case. X spent 1 day in day-care during the mother's time, so as to keep her place in the day‑care centre, but she spent the Thursday and Friday of the father's time in day care, so the father really only had one full day with her on the Saturday.
I also accept that from time to time the father called upon the mother to assist him with the care of X whenever he had work commitments or other commitments that made him unavailable; the arrangement worked amicably. In a practical sense I therefore accept the mother was doing more of the "caring", but I do not consider that the mother was spending 4 or 5 nights per week with the child as she says. I consider that the mother was, however, doing more of the day‑to‑day caring of the child than the father, within the rubric of what was generally intended to be an equal-arrangement.
Each of the parties subsequently re-partnered. The mother re-partnered with Mr E in 2020 and the father re-partnered with one Ms J.
The mother's relationship has endured and she and Mr E now have the twins as I have referred to.
The father's relationship with Ms J was a more fractious and difficult relationship characterised by arguments between them, which were sometimes witnessed by X, or to which she was exposed, and there was some instability in that relationship. In early 2023, their relationship finally broke down, and I accept the father's evidence that it is not going to resume as he and Ms J have unsuccessfully "tried everything to make their relationship work".
Ms J had 2 other children - T and U - who no doubt spent significant time with X during the periods that the father and Ms J were living together.
The relocation:
I turn then to the issue of the relocation, which is, in a sense, where things went awry for these parents.
In late 2021, the mother dropped X off at the father's house. She advised him that she was pregnant with the twins, and that she and Mr E - in the mother's words "were considering moving to Queensland near [Town C]."
She says that she advised the father that it was due to Mr E having employment opportunities with his family's business, and due to them wishing to be closer to Mr E's family, who I note live in Town C, and who would hopefully be able to assist with the twins when they were born.
In the witness box the mother was challenged about whether she had told the father that Mr E was going to go and work for his family's business. She admits she may not have said that to him, and indeed at one point she said she did not. She then said she could not remember, although she was definite in saying that she told him that it was due to their employment situation. These matters might be thought to be minor details, but they do assume some relevance for reasons that will become clear.
I do not accept the mother's evidence that she told the father that the move related to going to work for Mr E's family business.
The father, being told about the possibility of relocation for the first time, responded by a text message to the mother, seemingly on the same day. He said to her:
I know you probably don't know any details, but if you had a timeframe you were thinking about, it would be great to know. Obviously very hard for me to consider so soon after finding out, but without [X] here, there is nothing keeping me in [City B]. It might take me a while to find the right job, but I would consider moving. I assume you would head to [City H/Town C] area. Even if it was to Brisbane, or something, just to make it easier to see [X], it would all revolve around me finding the right job.
That is to say, the father's initial reaction was that he was open to the relocation and would look at the possibility of himself following / moving closer. The mother responded to him as follows:
Yeh we were thinking around [Town C] but also considering up towards [City K]. But being in the same state would make it a lot easier definitely and only one flight or an easier drive. Who knows what might come up job-wise for you, could be a nice change. Of course wouldn't expect you to move and if you didn't I would want [X] to see you as much as she could. If we do decide to go we would like to be moved before the babies are born […].
[my underlining]
I pause here to observe that the mother was clearly floating different possibilities at this time and not speaking in terms of any need to move per se, but rather a strong desire to move.
The possibility of her and Mr E moving to City K was something she was asked about in the witness box and she said there had apparently been a job opportunity up there at one stage. Certainly things were vague at that point, and the mother conceded that it was really a situation where they were in the "early stages of moving."
I note that the possible work in City K which was referred to by the mother was work in primary industry for Mr E - apparently as a result of some sort of connection that Mr E had there. There is no suggestion that Mr E had any family connections in City K or that there was any family business up there.
Seemingly the next day, the father sent the mother an email. He had reconsidered his position. His email read:
[Ms Harling], I appreciate you raising the issue of you relocating to Queensland. I want to be clear that I do not consent to [X] moving with you at this point in time, as this impacts our current arrangement that provides me with 50 per cent custody. Happy to have further discussions about it to see if we can come to an agreement. Thanks.
According to the mother, the father also telephoned her the same day, telling her that he was happy to work through possible arrangements if they relocated, but he had decided he was no longer going to relocate to Queensland. It is common ground that that is so, and that the father never raised the possibility of moving to Brisbane again.
That same day, the Mother deposes that:
I advised [Mr Aldrich] on this occasion that [Mr E] and I had decided that relocating was our best option, and that I wanted to ensure that any arrangements as to [X’s] living arrangements allowed [X] to continue to spend significant time with [Mr Aldrich].
[my underlining]
This was the day after her text messages to the father first referring to the possibility of moving to Town C or City K. That is to say, the mother's expression of interest in moving seems to have become a definite plan. However, given some of the concerns I have about some of the evidence that the mother and Mr E gave in this case, I am unsure and far from convinced, that their plan to move was not already well and truly set in stone when the mother first spoke to the father and sent the text to him.
In any event, there seems to have been a brief hiatus after this period. Christmas intervened; the question of relocation was somewhat up in the air. Certainly there was no agreement and there was no definite way forward for the parties. They were at something of an impasse.
On 5 January 2022, the mother sent the father the following long and detailed text message:
Hey I really wanted to talk to you again about us moving to Qld. We have more details of what we would like to do and I feel like sending a txt will give you a better idea of the details and you can let me know your thoughts etc.
We are thinking we would like to spend 6 - 8 months in [Town C] with [Mr E's] family. The twins are due […] but most likely will be here early so ideally we would like to be there some time [earlier] so we can settle in. We are definitely not planning on staying there long term, we just feel like that we will have the best support at the start there and will re evaluate.
I want you to be able to see [X] whenever you want as much as possible so not sure if that would be a regular time we stick to eg fortnightly or monthly or work around your work schedule; whatever you would be comfortable with. I know my family will be able to support you when she is with you in [City B] and perhaps we can look at getting her casual days at school when she is there?
I completely understand and I am well aware that this is not the easiest thing for you to contemplate but I want to make this as easy as possible and I wouldn't be bringing this to you if I didn't think it would be the best thing for us at this time.
I really would like it if you would give me your honest feelings and thoughts and that nothing is closed door and that we're open to discussing this based on what you want as-well.
[my underlining]
The father then seems to have contracted Covid, and this delayed the parties' discussions. In mid-January they discussed each of them having X for a few weeks at a time; this was a possibility that the mother floated. The father was initially considering it, but indicated he was unhappy about it if the mother was going to be at a distance, given the amount of travel involved and all of the disruption.
Ultimately the father decided to bring proceedings in the Court which he filed on 24 January 2022.
In the leadup, the parties were discussing possible mediation. In this context it is clear from reading the text messages at that time that the mother realised that the situation was somewhat awkward, and that she really did not have the father's consent to the move which she desperately wanted. The father texted her to say:
The mediation people are going to call you to get some details. I assume it will likely be today but may be tomorrow. There are costs associated with mediation that we will need to work out also.
The mother responded with this message:
Okay thanks. I am curious though what do you wish to achieve from mediation? Do you want full custody of her?
You have no grounds for stopping us moving, so I'm not sure what you expect the outcome to be?
I'm not restricting you seeing her and there is no abuse of any form.
I pause here to observe that the mother's message clearly set out her intention and desire that X would be moving with her, and was very much a statement in the nature of pressuring the father to agree. Indeed, as will be apparent, there are various themes in this case of the mother applying a degree of coercion to the father.
The father responded by text saying:
My main priority is what's best for [X’s] well being and development. I'm not pursuing full custody as I don't think that's in [X’s] best interests as I think it is vitally important for her to have a relationship with both her parents. Should the situation or determination ever occur that I have full custody I would have no hesitation in accepting if that was in her best interest
The mother responded by text saying:
Excellent so in you being concerned about what the best option for her would be in regard to her fostering relationships with family and her development than [sic] realistically the best option would be for her to be with me the majority of the time because if she was with you she would spend her entire week in care or in the care of someone else. Which will be fine for her 50 per cent of the time maximum. Therefore the only thing to figure out for us is the terms of when you want to see her when we move.
As I have stated in my emails and in person, you can see her whenever you wish within our 50/50 arrangement if that is less I am happy to accommodate this. You do not have to tell me dates now you can tell me as we go when you would like me to bring her back but [Mr E] starts work in early Feb so we will be leaving [in] Feb. If you feel we need mediation to work out the exact dates you want to see her…
The message is a little unclear and seems to be cut off, but it goes on to say:
moving for employment I don't require your 'consent' as I am still allowing full agreed access to her. You can either start working together as her parents or continue along this unhappy path you are creating for yourself. It's your call.
[my underlining]
I accept the mother was stressed at this time, but it is an example of the very strong coercive pressure that she applied to the father at different points in time. Her commentary that he was creating the unhappy path was entirely unfair. It took no account of the father's in my view legitimate desire to be able to maximise and spend quality time, and have the most meaningful relationship he reasonably could, with his daughter.
In short, the mother was proposing some form of equal-time arrangement from a distance between Town C and City B which was, with respect, a half-baked proposal that was never going to be able to work satisfactorily in X's best interests, and was frankly incredibly disruptive. In the witness box the mother said she regretted sending this message and that the reason she sent it was that the father was not giving her options; that she wanted to work things out with him in some way; and that he was not giving her any feedback. I understand the mother's frustration about that, but in my view the situation that was being proposed of some sort of fortnight-about time, as I have indicated, was simply not going to work in the child's best interests.
Moreover, what was underpinning that message from the mother was the clear intention, desire and belief, that the father would eventually "fold", and that he would end up allowing X to stay living with her when the parties reached the year 2024, and X then had to attend school. In other words the fortnight about arrangement was something which the mother fully expected would lead to X living with her as of 2024. She said as much in the Child Impact Report:
11. The mother proposed initially that [X] could continue to spend time between [City B] and [Town C] on a fortnightly rotating arrangement. When quizzed about the prospect of this from a practicable aspect in considering [X’s] enrolment in schooling next year, the mother explained that she believed the father would have agreed to her residing in her primary care in [Town C] due to his past history of being unavailable to care for her at times. The mother also explained that the father works full-time and she considered that he would see that she was better placed to offer primary care to [X] due to her availability.
In the circumstances the father cannot be criticised for bringing proceedings in this Court given that he did not agree to the relocation and wanted to be able to come up with a child focused way forward.
He texted the mother in response, saying that his intention was never to stop her moving:
as I know that is not my decision to make, has nothing to do with me but it does effect [X] and that is my concern. Without knowing the details of your planned relocation I can see that it will be harder to do with [X] in your care so she can remain here with me while you're relocating and then we can work out the details once you are settled.
The mother responded by text:
If it makes you feel more comfortable for you to have her for the first two weeks while we move I am happy with that. I would like to work out the details though for when I would like to see her and that is 2 weeks after we leave and that will be to meet at Brisbane airport as previously discussed.
In February or thereabouts, the mother and Mr E moved to the Town C area, initially staying with Mr E's parents at their home located on the business premises that they own. The mother and Mr E subsequently moved into their own rental home about a month later.
In relation to the relocation discussions, some confusion abounds in my mind.
It is quite apparent from the evidence of Mr E that in mid-2021 his employment within primary industry was coming to an end. The company for whom he worked were effectively shutting down that particular site, or at the very least the workers were not able to continue at that site. There was an opportunity for Mr E to accept a relocation to another site. In the witness box Mr E said that he presumed that he probably could have gotten work in another site in the Region R.
But Mr E had other concerns. He was concerned that he did not want to take the Covid vaccine, and he understood at that time that there was a blanket rule coming in to the effect that unvaccinated persons could not be employed in his industry. His personal view was that there had not been enough "due diligence" (his expression) in terms of vaccine safety, and accordingly he was adopting the blanket view that he was not going to get vaccinated.
In a practical sense this meant that he did not have a future in the industry as a result of his decision. So instead of seeking work in another site in the local region, he took up the prospect of a 6 month job with his uncle who had a business in the local area (City B region). This was a temporary job; his uncle had sold the business to some other party in Melbourne, and Mr E therefore was going to run out of work, and therefore income, around late 2021.
Mr E knew this when the mother was pregnant with the twins.
Notably, and interestingly, the mother was asked in the witness box if she had discussed with Mr E the possibility of staying in City B. This was an obvious question, because although the mother - and Mr E for that matter - have absolute freedom of movement themselves, there was a rather large elephant in the room in the sense that the father was spending something close to equal time with X. It was noteworthy that the mother said she and Mr E did not have that discussion; certainly she had no recollection of any such discussion. She did say that Mr E in a generic sense had been "looking at jobs", but that was about as much detail as she gave.
In the witness box Mr E was expressly asked if he could have applied for jobs in the City B region and said he could. When asked "Did you apply?" he said "No."
To be clear, as I have said, Mr E and the mother were free to live where they wanted to live, but it seems to me that the "clock was ticking" in terms of their economic viability as a couple in City B given:
·Mr E's conscious decision not to be vaccinated for Covid; and seemingly
·his conscious decision not to even look for work in the City B region to see what was available.
Mr E said that the pregnancy "sparked feelings in him" about going back to his family in Town C where he knew he had support. He said that the option to go back to the family business had become attractive to him, and indeed such option was always "on the cards."
But if that was his motivation, I do not understand the mother's message to the father very early on in the discussion where City K was floated as a possibility for the move, and I certainly do not understand the mother's text message wherein she said that they were looking at spending 6 - 8 months in Town C, and "definitely not planning on staying there long term."
I am troubled in this case by the evidence that there does not appear to have even been much consideration - perhaps not much consideration at all - as to the relationship between X and the father in the event that Mr E and the mother relocated. Even in the maternal grandmother's affidavit, she being clearly a strident supporter of the mother in these proceedings, I do not even detect a hint of the grandmother raising such matters either. I find this a troubling matter. I am satisfied that in the background of this relocation that the mother believed that the father would simply acquiesce, as she said to the Court Child Expert.
In my view the mother's actions in this regard had a coercive flavour. A coercive flavour is less of a concern where parties are living in the same locality, but it can be a much greater concern where the party who engages in such behaviour has primary care of the child and is vested with the responsibility of ensuring that the child has a meaningful relationship with the other party. There are other concerns about the mother and Mr E's evidence, particularly in relation to Mr E's employment, that I will come to a little later.
Interim orders of 17/03/22:
Returning then to the Court proceedings, the parties entered into some consent interim orders before a Senior Judicial Registrar on 17 March 2022. By that stage the mother realised that the father had not in fact conceded to the relocation; the father had stood his ground, as it were; there was no agreement about relocation, and I suspect that the mother found herself in a corner that she had never expected to be in, and perhaps was not entirely sure how best to manage.
The parties entered into orders that X live with the father and that the parties have equal shared parental responsibility.
In terms of the "spending time" arrangements, the order provided:
Spend time
3)That [X] spend time with the mother as agreed between the parties, but failing agreement as follows:
(a) for 4 x 3 week periods each year with the Mother providing one (1) month's notice to the Father of the dates she intends to spend with [X] and the father will do all such acts and things to facilitate the spend time;
(b) for up to seven (7) nights in the event that the Mother is in the [City B] area with the Mother is to collect [X] from the father's residence at the commencement of time and return [X] to the father's residence at the conclusion of such time, and with the mother to give the father at least one month's notice of her intention to travel to [City B] and spend time with [X];
(c) Any such further time as agreed between the Mother and the Father.
There were Notations to the orders which provided that:
A.The parties agree if the spend time arrangement seems to be progressing well that the Father will give due consideration to additional spend time as reasonably requested by the Mother and that he will not unreasonably withhold his consent for such additional time as may be requested from time to time, and with at least one month's notice.
B.The parties note that the mother has opted to exercise her first block period of time, as provided in order 3(a), with such time to commence on Sunday, 20 March 2022. The parties waive the requirement for the mother to give one month's notice on this occasion.
Pursuant to the orders, X's first visit to the mother in Queensland was from March to April 2022.
Some days later, the mother proposed that her next period of time occur in May, some four (4) weeks or so later. Her notice was given two (2) days later than required by the orders, and the father this time "took the point" and decided that he would not agree to that time.
It could be said that the father was taking an overly rigid approach, but it needs to also be considered against this background: that the orders provided for there to be 4 x 3 week periods per year in Queensland, and the mother was effectively seeking to cram them in very close to each other in a way that was not quite equal time - but as close to it as could be managed - and obviously at that pace there was going to end up being longer delays between visits later on. Moreover, the father had agreed to waive the notice requirement for the previous visit.
Nonetheless, the father refused to waive the notice requirement on this occasion.
The next visit occurred between June and July of 2022.
The third visit occurred in August. I should add here that on this occasion there were real difficulties with flights due to fog in Brisbane that delayed both parties. It would be fair to say that the flight delays illustrated that real practical issues can arise in terms of these visits given the locations. The mother was effectively obliged to fly from City H to Brisbane. The father was flying from either City B or Sydney to Brisbane, Sydney presumably, and inferentially, being somewhat cheaper for him albeit that he had to drive there.
Parties are at loggerheads:
Notwithstanding the three (3) visits to Queensland that had occurred in the five (5) months between March and August, unfortunately the parties found themselves increasingly at loggerheads. There was a lack of trust between them, and perhaps each was thinking that the other was abusing the situation.
A particular problem arose on the Father's Day period.
Pursuant to order 3(b) of the orders, on 22 June 2022 the mother proposed to the father that she would be taking a seven (7) day block with X in City B from 4 September to 11 September. Her plan at that stage was to attend the Child Impact Report interviews on 12 September and then have another week with the child in City B afterwards. (The mother was originally planning apparently to stay for some three (3) weeks in City B around the time of the Child Impact Report.)
The mother's proposed seven (7) day block commenced on Father's Day. This was clearly not prohibited by the orders - indeed the mother was entirely within her rights to nominate those days - but it was perhaps unfortunate that she would choose to exercise the time on Father's Day. When I raised this with her in the witness box she said she had been unaware of it being Father's Day until the father responded to her proposal.
In any event, and to his credit, the father agreed that the mother could have X on Father's Day. He did, however, take objection to the mother having the seven (7) day block she indicated. He specifically wanted to reserve 8 - 11 September for himself because he and his then partner, Ms J, had planned a trip to go away to City BB. Therefore, he instead offered the mother time with X from 4 - 7 September, and then some more time with X after the Child Impact Report interviews on 12 September.
I should say the father had responded to the mother a month after her message to him.
The mother was unhappy with his proposal. She responded saying that she did not accept that he had these holiday plans and wanted proof that they had been pre-booked; she was effectively insisting on her time proceeding.
The Mother also proposed that she would then have another three (3) week block with X from 13 September - 2 October as her final block for the year. That is to say, the mother was proposing that she would have the child from 4 - 11 September, then there would be the CIR on 12 September, then she would take the child to Queensland from 13 September to 2 October.
Relying on Notation A to the order that required the father not to "unreasonably withhold consent" for the Mother to have the child for further block time, the Mother also additionally proposed that she would then take X to Queensland from 1 November - 22 November and from 19 December - 9 January 2023. She was willing, in the spirit of compromise, to treat the latter period as being the "first block entitlement" for 2023. In short, the mother was proposing to have six (6) x three (3) week blocks during the year, rather than the four (4) set out in the orders, although she was willing to regard the sixth block over Christmas as being the first block of the next year.
It seems that the father took some umbrage about this. He had conceded that the mother could have time with X on Father's Day, but was not going to back down from having a holiday of his own with X between 8 - 11 September.
The Father was also taking a different view of the orders to the mother. In this regard there was clearly a dispute: notwithstanding that both parties were legally represented, they had come to different interpretations of order 3(a) in particular. The father's position was that the orders operated prospectively, that is not retrospectively, therefore they came into force on 17 March 2022. On that basis the mother's 4 x 3 week blocks commenced from the date of the order, ie. the "year" runs from 17 March to 17 March.
The mother's proposal, or understanding I should say, was that a year referred to a "calendar" year. That is to say, although it was entered into in March, it effectively meant that the mother could allocate four (4) block periods over what was effectively the period between mid March and December; that is to say over about nine and a half (9 ½) months.
The mother's approach was more generous in terms of her time with X; the father's approach was less generous. I accept that each party genuinely interpreted the orders in the way that they did, but on any view the mother was pushing for much more time than the orders provided for. While I understand her desire to do so, there was an inevitable element of disruption involved.
The legal representatives became involved in this unhappy build-up between the parties as Father's Day approached. Each of the legal representatives set out what they believed was a reasonable position; namely that the orders ran from 17 March to 17 March in the father's case, and that he should be able to have a holiday of his own in September as booked, and in the mother's case that the year ran on a calendar basis and that the father had to comply with order 3(b) by providing X to him from 4 September - 11 September.
There was clearly another impasse that had arisen between the parties.
Father's Day 2022 / Apprehended Violence Order:
Against that background, on 4 September 2022 (Father's Day), the mother attended at the father and Ms J's home.
The mother attended the home to collect X, knowing that she had the benefit of order 3(b) which gave her, at least prima facie, the right to have this child from 4 September - 11 September 2022. To recap, the father had sought her consent to return the child on the 7th so that he could have a holiday, and had then offered her to have the child after the Child Impact Report, and make up the time that way. The mother was not agreeable to this.
The mother attended the home; the father was inside with X. He says that the mother was threatening and abusive to Ms J outside the house, that she became aggressive and refused to leave, and that his neighbours later inquired about his well-being and that of Ms J. He did not himself, however, see or have direct contact with the mother on this day, so I cannot necessarily attach great weight to what he says. I do not have any direct evidence from Ms J in this case, which is unsurprising given that she and the father have separated. Moreover, the father himself did not claim in his affidavit to have specifically witnessed the mother in terms of her behaviour, because he was inside the house with X.
The mother's own evidence is that when she attended the home, Ms J was in the front yard with her children, who went into the house saying, "[X], your mum is here."
The mother says she knocked on the front door and called out words to the effect of, "[X], I'm here to pick you up." She could not see X, but she could hear her at the back of the house apparently crying and screaming. The mother admits she walked around to the back door and that she knocked again, and that Ms J said she was going to call the Police. The mother went back to her car and spoke with Mr E by the phone.
It is obvious to me that emotions were raised on this day. It is obvious to me that on a strict reading of the orders, and notwithstanding that it was Father's Day, the mother was entitled to be able to collect X. It is also obvious to me that the far better decision would have been for there to be a compromise reached, and for the mother to have X from 4 - 7 September, which would include Father's Day, and then to have her for a week after the CIR. The mother herself accepted in hindsight that this would have been a better option; I think myself that it would have been a much better option.
Both the father and Ms J complained to Police about the mother's behaviour. Ms J spoke to the Police. It is noteworthy that when Police attended the location, they described Ms J as:
…visibly distraught, crying, and struggling to speak with police about the incident.
On the evidence Ms J gave them, though it cannot be tested in her absence, she would have the Court believe that the mother was effectively acting in an intimidating or bullying manner and seemingly trespassing as well. Police were concerned that the mother was harassing the father as well as Ms J, and they were concerned about the safety of the children in their household.
The Police - and I emphasise the Police, not the father and not Ms J - decided to bring an application for an AVO against the mother. A provisional order was made, which seems to still be in force and is being contested by the mother, apparently, in the next few months at a hearing in the Local Court at City B. The AVO required that the mother not assault, threaten, stalk, harass, intimidate or intentionally or recklessly destroy or damage property belonging to the father or to Ms J or to anyone they had a domestic relationship with. There was also a specific order that the mother not approach the father or Ms J or contact them in any way except:
…as ordered by this or another court about contact with children.
There was also an additional order that:
You must not go within 100 metres of (a) any place where the father or [Ms J] live or (b) any place where they work or (c) any of the following places – [Z Street, Suburb T]
which is where the father and Ms J were living at the time.
The mother knew that there was a dispute when she attended at the home. She would not take up the father's - in my view - entirely reasonable proposal that she instead have X from 4 - 7 September and for time after the CIR; and she directly involved the child by calling out for her and saying, "Mummy is here." This is an example of the coercive approach taken by the mother on various different occasions throughout these proceedings.
There are limits to what the Court can find in terms of "family violence" on this occasion. On the mother's case, there was no family violence. On the father's case and on the face of what was told to Police, the mother may have engaged in harassment or intimidation. Family violence is not really so much the concern to me. Quite frankly, I do not really see any great benefit or even need for this AVO. I am more concerned, though, about the mother attending the home in the face of a dispute and clearly trying to involve the child in that dispute. Having said that, again I must weigh into consideration the fact that on the face of the order, the mother was entitled to that week of time, and the father had not shown her evidence that he had pre‑booked the 8 - 11 September holiday as he claimed.
Notwithstanding this unhappy fracas, the father nonetheless agreed for the mother to see X on 13 and 14 September before she returned to Town C, but by then "the writing was on the wall" in terms of the dispute as to how the 3-week block periods were to work in terms of years / calendar years.
Interim orders of 13/10/22:
The mother filed an Application in a Proceeding seeking clarification of order 3(a), and on 13 October 2022 the matter came on for interim hearing on 13 October before Judge Dunkley.
There was a dispute about the days of the year, and in particular when the year began. Ultimately, the parties entered into further consent orders, and they read as follows:
INTERIM ORDERS BY CONSENT:
(1)That pursuant to order 3 of interim orders dated 17 March 2021, that the mother shall spend time with the child X born 2018 as follows:
(a)from 31 October to 21 November 2022;
(b)from 19 December 2022 to 9 January 2023;
(c)from 6 February 2023 to 21 February 2023 -
[I pause here to observe that this was a typographical error. It ought to have been a three (3) week holiday. To the credit of the father, he later agreed to the mother's request that the holiday run from 6 February to 28 February on the basis of this typo. That is to say, he showed flexibility.]
(d)from 27 March 2023 to 17 April 2023 -
[this being the last trip to Queensland before the final hearing was to take place]; and
(e)from 22 May 2023 to 12 June 2023.
Judge Dunkley noted that the case had final hearing dates before me in May 2023.
The effect of the orders proposed was that the mother "front-end loaded" her time with X so that she had exhausted all of the 3 week block periods within the first five (5) months and twelve (12) days of the year - that is, by June 2023.
The father consented to that proposal, but the practical effect of it was that it ensured, in so far as was possible from the mother's perspective, that the time would be as close to equal time as she could make it. That is, the child would effectively be four (4) weeks with the father, three (3) weeks with the mother, which is something that she clearly wanted to be able to arrange.
Of course, the "front-end loading" had the practical effect that if the trial had not proceeded this week, the mother would effectively have had to come "cap in hand" and seek additional block periods pending the matter proceeding to trial or pending a judgment being delivered. Indeed, at the commencement of this trial I indicated that the trial of another matter had priority over this case, this other matter being a totally different, unrelated matter that involved serious risks of harm to a child, which is fortunately not the case here. And Mr Willoughby, on behalf of the mother, immediately indicated that if the final hearing could not be reached, then a further interim hearing would be necessary. This was a situation that, with respect, the mother created.
Nonetheless, the matter did come on for final hearing, and it became perhaps an academic issue.
In terms of flexibility in terms of the interim orders, I should also add one more observation. The father had gone to Region L for around five (5) days for a holiday in 2022. He was in Region L for some four or five nights. In the course of a FaceTime communication with the mother, X told her that they were in Region L, and the mother then complained that the father ought to have offered the mother some time with X while he was in Region L having a holiday of his own.
I thought the mother's complaint (which was also echoed in Mr E's affidavit) was uncharitable and unreasonable. Is the father not entitled to have a holiday with this child without interrupting it to spend a night with the mother? I know from the geography that Region L to Town C would be probably upwards of six (6) hours' drive if not more, and to suggest that the father (in Region L) was anywhere near the mother's location is really defying logic. I thought this was an unreasonable approach for the mother to take, and indeed it echoes the approach she took about Father's Day in September 2022, though as I again emphasise, there was an order which on its face gave her that particular entitlement.
THE LAW:
These are parenting proceedings which arise pursuant to the provisions of Part VII of the Family Law Act ("the Act").
The objects and principles which underpin the operation of Part VII are set out in section 60B. I am well familiar with them and do not propose to re-state them here.
When deciding whether or not to make a particular parenting order, the child's best interests must be regarded as the paramount consideration: sections 60CA and 65AA. In arriving at a "best interests" determination, the Act prescribes mandatory considerations in section 60CC. Subsection (2) sets out two (2) "primary considerations", and subsection (3) sets out fourteen (14) so-called "additional considerations", the last [s 60CC(3)(m)] being a "catch-all" provision designed to accommodate the facts of each individual case and family that come before the Court.
"Parental responsibility" is defined in section 61B of the Act as:
…all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children.
Section 65DAC obliges parents who share parental responsibility to consult with each other about major long-term issues and to make a genuine effort to come to a joint decision.
Section 61DA imports a rebuttable statutory presumption that when making a parenting order for a child, it would be in the child's best interests for the parents to be allocated equal shared parental responsibility.
The making of such an order triggers the statutory pathway set out in section 65DAA of the Act. That section requires that the Court consider as the first option the making of an order for the child to spend equal time with each of the parents, provided such an order is in the best interests of the child and is reasonably practicable. If an equal time order is not in the best interests of the child or is not reasonably practicable, then section 65DAA requires that a court consider making an order that the child live primarily with one parent but that the child spend "substantial and significant time" with the other parent. This term is legislatively defined in section 65DAA(3) as including time not just on weekends and holidays but also time apart from weekends and holidays; time which enables the parent to participate in occasions and events that are of particular significance to the child.
Where an order for the child to live with one parent and spend substantial and significant time with the other is not in the child's best interests or is not reasonably practicable, then the Court must consider making an order that the child live primarily with one parent, and the question of the other parent's time is essentially "at large", to be determined by reference to the mandatory considerations set out in section 60CC.
"Reasonable practicability" arises as a relevant consideration in this case given the distances involved. It goes to the Court's jurisdiction to make an order. Both parents in this case concede that there should be an order for equal shared parental responsibility, and I indicate that notwithstanding the events of 4 September 2022 and the communication difficulties that have sometimes arisen between these parents, I do consider that making an order for equal shared parental responsibility with the consent of both parents is going to be in X's best interests, and I will be making that order.
I will therefore be obliged to follow the statutory pathway in s 65DAA and to consider reasonable practicability.
In MRR & GR (2010) FLC 93-424, the High Court observed that section 65DAA and issues of reasonable practicability are concerned with the reality of the situation of the parents and the child and not merely whether it is desirable in principle that there be equal time spent with each parent.
Each case, of course, turns on its own facts. The High Court clearly laid out a relevant principle as to reasonable practicability the Courts are obliged to follow, one which requires a practical feasibility assessment.
The mother effectively is seeking to relocate the child's residence. In that sense, the case has a relocation flavour, and there are many authorities of this Court dealing with applications by one parent to relocate the residence of a child to another location.
In Zahawi & Rayne [2016] FamCAFC 90, the Full Court of the then Family Court of Australia (comprising the late Thackray J together with Murphy and Austin JJ), made a number of observations about relocation cases, which I will now set out. The Full Court said (omitting footnotes):
43.…Conformably with what had been said by the High Court in [AMS v. AIF (1999) 199 CLR 160] that a parent seeking to relocate with children need not show “compelling reasons” for the relocation, the Justices in the later decision of U v U [(2002) 211 CLR 238], and in particular Kirby J, referred to long-standing English authority, the emphasis of which can be seen in what Sachs LJ said in Poel v Poel:
…The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.
44.As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:
[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.
and:
[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.
45. His Honour went on to say:
This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject. However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation. So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.
46.However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.
47.All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
43.…Conformably with what had been said by the High Court in [AMS v. AIF]
In Adamson & Adamson (2014) FLC 93-622, the Full Court (comprising Ainslie-Wallace, Murphy and Kent JJ), held at paragraph 66 of the joint reasons for judgment that the right of a parent to effectively live where he or she wants to live and the freedom of mobility of that parent:
…only defer to the paramount consideration of a child's best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent … necessary to avoid such adverse effects.
In U &U, as referred to earlier, the High Court held that this Court is not strictly bound by the competing proposals of each party. Subject to each party being given procedural fairness, the Court can craft different orders when required in order to meet the best interests of the children in any given case.
I also note that "relocation" itself is a term that does not appear, as far as I am aware, in the Family Law Act. It only appears inferentially as part of the statutory definition of a "major long-term issue" in section 4. Therein, a "major long-term issue" is defined as including:
…changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The Legislature have clearly left open to this Court to make decisions about what is in the best interests of the child in any particular case, including this one. Relocation cases are not a special category of case, although they do give rise to some specific considerations, as identified earlier. They have to be determined, like other parenting cases, subject to also the reality that parents should be free to live where they want to live, that Australia is a free country and that people should ordinarily have freedom of movement. But fundamentally, the question is always one as to what is in the child or children's best interests.
BEST INTERESTS FINDINGS:
I turn then to make specific findings as to the best interests of X by reference to section 60CC(2) and (3).
I should indicate here that I do not propose to set out in full each of the relevant subsections of s 60CC, but if the parties require these reasons to be taken out in writing, I will have them included for the sake of the reader:
Section 60CC
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.
(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:
(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;
(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;
(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.
In terms of section 60CC(2)(a), I am satisfied in this case that X would benefit from having a meaningful relationship with both of her parents. There is no question about that. She loves both of her parents. She has two good parents. Her relationship with both of them is a relationship that benefits her enormously.
I have some genuine concerns that if the child were to live with the mother in Town C, that the father's relationship with X may diminish and may potentially diminish significantly. I have concerns about the mother's attitude to fostering his relationship, particularly from a distance. It is a matter that weighs heavily on me.
In terms of section 60CC(2)(b), I do not consider that any serious issue arises. I do not see this as a "family violence" case, and I see no real benefit to the child in particular in the AVO proceedings going ahead, but it is entirely a matter for the Police, and I suppose fundamentally as well for the father and Ms J, as to whether they give evidence or what happens there.
To be clear, I do not regard "family violence" as a serious issue in this case. I have made the observations I have about what happened on 4 September, and I will not repeat myself.
In terms of section 60CC(3)(a), X is too young to express a view that can carry any weight. I have no doubt she loves seeing her mother and now her younger siblings at Town C as well as spending time with Mr E and his family. At the time of the Child Impact Report, X thought that the mother was only in Queensland on holidays and she became upset when questioned about this. I simply cannot place weight on X's wishes beyond observing that one thing I am satisfied of is that she would like both of her parents to live much closer together than they do. That much, I am very confident about.
I should observe here as well that X is coping adequately with the flight and travel arrangements that have been put in place.
In terms of section 60CC(3)(b), the child has lived or did live in an equal time arrangement from around the age of eighteen (18) months. When I say equal time, the time favoured the mother to some extent, but it was substantially equal time. It was all X knew. The mother then relocated.
When X is in Town C, she no doubt thoroughly enjoys and benefits from spending time with her mother as well as with Mr E when he is there and I will turn to that shortly, as well as with her younger half-siblings V and W, who are probably seen by her as siblings.
I also accept that Mr E is part of a much larger Country M/Country N family who treat X like one of their own. I note that his brother has two children as well who have relationships with X, probably of a cousin-like nature I would have thought.
There are some loving, positive relationships of real importance and significance to X in the Town C area.
In the City B area, X has her father, who has now been primarily caring for her since the mother relocated in February 2022. She also has other maternal family in the City B area who the father has facilitated relationships with, most notably the maternal grandparents, the mother's sister and husband and their two children, who are cousins to the child and which children until recent times used to attend the same daycare as X.
The father also has other friends who he is close to and who the child has come to know, and obviously, X has developed friends at daycare in the local area. The mother has involved her in similar arrangements in Town C in order to prepare her for a move if that is what the Court decides is in her best interests.
In terms of section 60CC(3)(c), both parents have been actively involved in Sunday's life in terms of spending time with her, communicating with her and decision-making. They are both active and involved parents.
In terms of section 60CC(3)(ca), issues of child support did not arise in this case. I understand that no child support is paid from one party to the other, and the matter simply was not raised as a contentious or even particularly relevant issue.
In terms of section 60CC(3)(d), the likely effect of any change in circumstances, as I have indicated, X only knew an "equal time" arrangement from a very young age, until when the mother relocated. The father, in my view, has runs on the board in terms of promoting the mother's relationship with X since she left, though that is not to say that he has done everything absolutely perfectly. He certainly has the runs on the board, and I am satisfied that from City B, he will promote a relationship with the mother - a meaningful relationship.
The mother is untested in terms of being the primary carer for X from Town C. That is not to say that the mother does not have the skillset to look after the child. My concerns about the mother relate to questions of stability, questions of her willingness to foster a meaningful relationship with the father and indeed her capacity to do so from a distance, given some of the concerns I have about her, some of which I will turn to in a moment.
On the evidence before me, I am not convinced on the balance of probabilities that the mother and Mr E will even be living in Town C long-term. Unfortunately, they were dishonest with the Court about his work arrangements, to which I will turn shortly.
Fundamentally, the existing arrangements have worked probably as well as any arrangements could have, given the circumstances that X found herself in, and given that neither party was willing to effectively "cave in" to the other's demands.
In terms of section 60CC(3)(e), there are real practical difficulties in fostering a relationship between Town C and City B. No issues would arise if the parents had stayed living close by each other. In all likelihood, the child would have gone on to have a quality relationship with both parents with very little fuss.
Given the relocation, the Court has to now manage as best it can the inevitable consequences relating to flights and costs and all of the other practical issues that arise - and have in fact already arisen on numerous trips in the course of these orders. They have been manageable, but frankly they have no doubt been a significant inconvenience to both parties.
In Town C, the mother is entirely dependent on Mr E at this time to pay for flights for her to travel to Brisbane. She said as much, and it is a logical conclusion. Mr E earns approximately $112,000, his family paying various fringe benefits and covering all of the travel costs as I understand it. They may even have frequent flyer points that can be allocated to assist. When asked what would happen if she and Mr E were to separate, the mother said that Mr E's family regard X as one of their own and that Mr E will continue to support her in terms of meeting flight costs for the relationship between X and the father to continue.
In terms of the parenting capacity of the parties pursuant to section 60CC(3)(f), each of the parents has a proven capacity to provide for the child's day-to-day needs. The mother is physically more available than the father is, given his employment, but she also has the care of the twins as well, so it is not the case that she is entirely able to devote her time to X. I do not say that disrespectfully; it is just a fact.
The father works full-time, some 35 hours a week. He had deposed in his first affidavit (in January 2022) that he had some work flexibility and that he would try to keep X in daycare for three (3) days a week, but after the mother left, he enrolled her for five (5) days per week. When the maternal grandmother offered to care for X for a day a week out of daycare, the father took her up on that offer, and X now spends four (4) days per week in daycare. The father willingly conceded that he had been quite reliant on Ms J to help him with day care collections and drop-offs. In short, he had not had the flexibility that he had hoped for.
However, in my view the father had made appropriate arrangements in the exercise of his parental responsibility: section 65DAE. It was essentially "his call" what care arrangements he made for X in circumstances where the mother relocated and effectively he was left in that role.
I accept the father's evidence that he does now have a degree of flexibility and can work from home for some two (2) days or so a week and that he can also work at night when X is in bed. He says he can get her to and from school. None of these things are, in my view, determinative of anything. He can provide appropriately for her.
The issue of daycare arose as a matter of some criticism of the father. I accept Mr Duane's submission that daycare is not just a matter of "babysitting"; it is part of X's development. These parents had enrolled X in daycare from when she was less than a year old. I do not say that to be critical at all of them. My point is X is very, very familiar with going to daycare, and I do not see it as any serious issue in this case.
The father was criticised for withdrawing X from sport and other lessons in 2022. The mother was effectively suggesting that he was not interested, or, inferentially, that he was not committed or available to support her in these activities. I do not accept those assertions. The father withdrew the child from sport because she was away (in Queensland) for almost half the time and when she was away the fees were having to be paid effectively for nothing. And moreover, in terms of the other lessons, the child's frequent absences in Queensland would have placed her at an enormous and unfair disadvantage in terms of the end-of-year concert, and she would not want to let her friends down by not being able to perform adequately. I do not think any serious issue arises here.
In terms of section 60CC(3)(g) of the Act, X is very young. I have already observed the tumultuous changes through her life. She has gone through quite a lot of different events.
In that regard, I turn briefly to the maternal grandmother's affidavit. The maternal grandmother, I am satisfied, is a loving and excellent grandmother to this child and provides her with love and support and all of those good things that grandparents bring to the table. I have no question about any of that whatsoever.
But as a broad statement, the evidence of the maternal grandmother is in no way an independent or objective assessment of how X is coping in terms of the relocation, nor in terms of the reasons for why she is not coping. Put shortly, the grandmother says in her affidavit that X's health suffers when she is in City B; she has a terrible cough she cannot shake; she has a recurring skin condition, dark circles under her eyes, but:
In direct contrast, after spending time in Queensland with [Ms Harling], [X] appears much more relaxed, and her health picks up, her cough clears, eyes are brighter, and the [skin condition] starts to clear. Upon returning to [City B], [X’s] health starts to suffer again in what appears to be a vicious cycle for such a young child.
I do not doubt that from the grandmother's perspective, the child is not doing nearly as well physically or emotionally as she would be if she was with her mother. I have no doubt that is the maternal grandmother's belief. She absolutely, adamantly and 100 per cent supports the mother's relocation to Town C and seemingly has always done so from a very early day.
It is noteworthy that the maternal grandmother made various complaints to the mother about the child apparently being "poorly" which she did not talk about with the father and which were presumably not regarded as serious enough to warrant his attention, at least on some occasions. I can understand the suggestion that the grandmother did not want to "rock the boat" as the mother suggested, but equally, it is unfortunate that the grandmother, having had her relationship with X fostered by the father in this way, then chose to prepare an affidavit which is an entirely one-sided account, in my view, and I can give it very little weight. I do not say that to be disparaging of the grandmother. I have indicated already that she is a loving grandmother, but she is so firmly in the mother's camp that I simply cannot place weight on what she says.
To give one more example in this respect, I would also make this observation. Paragraph 7 of the maternal grandmother's affidavit talks about when the parents were living with them during the marriage, and she deposes that:
During this time, I became -
[I think it should say "came"]
to know [Mr Aldrich] very well and enjoyed being with [Y] and [X] and minding both children on many occasions.
She does not give me any assessment of the father in terms of his fathering. She does not tell me anything about him except she got to "know him very well".
Contrast that with what the maternal grandmother deposes about Mr E at paragraph 13 of her affidavit:
Since [Ms Harling] commenced her relationship with [Mr E] and I have gotten to know him -
[which is pretty much all she says about the father. But she then goes on to say -]
I have found him to be a kind, thoughtful and caring person. I have observed [X] and [Mr E] to enjoy a relaxed and loving relationship.
I say no more about the maternal grandmother's affidavit. It does not assist me in any serious way.
I also make this observation - that it is not rocket science, with respect, that upon the mother deciding to move to Town C in February 2022, that one would expect there to be some upheaval and tumult in X's life. What else would be expected? Yet it does not seem, on the evidence before me, that there is any real acknowledgement by the mother or the grandmother that some of X's upset or distress at times might in fact directly relate to the sheer amount of chaos that she has had to go through in terms of the relocation.
Against that background, I also observe that both parents agree that notwithstanding whatever issues X might exhibit from time to time - which are frankly perfectly understandable, given that her family is now scattered over two different states - they both agree that:
[X] is a confident, outgoing and friendly child who was able and willing to engage in play and a discussion with the court child expert with ease.
That is to say, they agree that she is a confident, outgoing and friendly child at paragraph 17 of the Child Impact Report.
At paragraph 19 of the Child Impact Report it is noted that:
Neither parent raised any concern as to [X’s] developmental achievements, and she was described by the mother as a happy, social, caring and creative child who loves craft and dancing.
I do not doubt that the child gets sad about not seeing her mother, gets excited to see her mother and her siblings and then takes time to settle again. There is nothing particularly controversial about that. In the same way, I have no doubt that the child also misses her father as well. Fortunately for X, she is a child who has shown some resilience.
I turn now to the attitude to parenting of the parties, and I begin again by briefly recapping the mother's decision to move and the circumstances surrounding it.
I have already made the observation that the mother and Mr E were free to live where they wanted to but that there were in my view little or no considerations given to the possibility of staying in the local area so as to facilitate a relationship between X and the father, and the mother absolutely and in her own words admits that she expected him to simply "fold" when she moved. That troubles me enormously. I have already observed that the plans for the move were vague. It is unclear to me what was really planned. Was it Town C? Was it City K? If from late 2021 Mr E did not have a job in the City B region, as seems to be the case, why did not the mother say so? Her affidavits talk about her "wanting" to move and where they would "like" to move, but the basic information in terms of Mr E's work situation, in my view, simply was not given. If Town C was really the plan that Mr E dreamed of and would have me believe, why was City K even in the mix? Why did the mother even talk about staying in Town C for only 6 - 8 months and then reconsidering?
In some ways, indeed, it reads rather like the mother and Mr E deciding in 2021 that they did not want to stay in City B rather than that they necessarily had any plan to stay long-term in Town C. The mother ploughed ahead with the move in the absence of any agreement, as she was entitled to do, but it inevitably created a degree of upheaval. The urgency that arose was urgency, in my view, created or at least contributed to by Mr E's decision not to even seek any work in the City B region or any sort of work that would permit any form of continuation of the agreed care arrangements between the mother and father for X and which had been working in her best interests.
The mother's equal time proposal was not a proposal that was going to work for the child, and it was made by the mother expecting the father to simply "fold" once the child reached school age.
Then, when the child has had sniffles or complaints or emotional upset, the response of the mother - and the maternal grandmother, with respect - was simply to blame the father and to accuse him of being selfish. Effectively, the consequences of the move, in terms of any difficulties X had, were foisted upon the father. That is the practical effect of what happened here.
I am concerned about that attitude, because the mother herself clearly, at 21 and 22 of the Child Impact Report, blamed the father for any emotional outbursts of X. She advised the Court Child Expert about the maternal grandmother expressing her concerns. The message is clear: "it was the father's fault, not my fault" - and this is the only way to read what the mother said to the Court Child Expert, and it is consistent with the tenor of her case.
Another matter that causes me great concern, and which casts a pall over the mother's evidence in general in terms of her motivations for leaving and her future plans, was the flavour of dishonesty of herself and Mr E. It was flagrant.
Mr E deposed in his affidavit, "Part C - About You (The Deponent)" that his occupation was "Employee at Family's [Business]". Having laid out for me in his affidavit the history of his parents owning the O Business, how it is family operated and how they offered support to he and the mother, Mr E's affidavit went on to depose that:
15.My father is reaching retirement age and is slowly in the process of handing the family business over to myself and my brother, [Mr P]. Due to this, and the support that my family has offered in relation to the twins, I had to relocate to [Town C].
16.Due to the locality of my employment, flexible working hours and large supportive family network, I will be able to support [Ms Harling], [X] and twins financially, physically and emotionally while residing in [Town C].
17.My employment in [Town C] is secure, and there is no intention now or in the future for me to obtain alternate employment.
In the mother's affidavit, she deposed:
125.[Mr E] continues to work at his family-owned [business]. [Mr E] is the primary income earner for our household.
The above is the sum total of the affidavit evidence I was given about Mr E's employment. Looked at sensibly and logically, I was being told that he was working in the business in a flexible working arrangement with lots of family support and he was clearly also available to the mother as well on a day-to-day basis.
All of that is untrue.
The father had deposed in his affidavit that he had understood that Mr E was back working in primary industry. At the commencement of the trial, the father's legal representatives called for Mr E's most three (3) recent payslips, and, lo and behold, they all related to his employment at a site near Town G, as I have indicated earlier, and they demonstrated that he was working an eighty-seven and a half (87 ½) hour a week arrangement.
In his examination-in-chief, Mr E described his employment as operations and said that he worked with machinery - quite different from being an employee at the O Business I might add. When asked by Mr Willoughby whether it was his sole employment, he said "yes" which I rather suspect was not the answer Mr Willoughby expected, although I am not in any way critical of Mr Willoughby. I accept Mr E's later evidence that he had misunderstood that question and that he did in fact do some work at the O Business, although it simply is not his true place of employment.
Mr E had been employed on site since the second half of 2022. He said that it was to pay his legal costs.
In relation to Mr E's work on site, Mr Willoughby suggested in submissions that "Sometimes when the other side calls for documents, it brings an issue to a party's attention." [this being a reference to the father's call for payslips.] I reject any suggestion that the mother or Mr E did anything but deliberately mislead me. A person knows whether their partner lives with them full-time and works in the O Business versus whether they live away at Town G.
Indeed, the mother said that effectively Mr E's mother lives with her to provide her with support on the days Mr E is away. None of that, of course, is in her affidavit.
I say it was a deliberate misleading because the mother was well aware that Mr E's work on site was not in her affidavit. She knew it was not there as I asked her myself. She had no doubt it was not there. Mr E knew it was not in his affidavit.
If I had not had the benefit of the father's evidence suggesting that Mr E was back working in the resources industry and then his lawyers calling for payslips, I do not believe that the mother or Mr E would have been honest with me and told me the true position as to their living and work circumstances.
And given all of the other swirling uncertainties about the move and how it came about and the attitudinal issues to which I have referred earlier, I am enormously troubled by this. It seems to me that the mother's approach was that she knew best and that the Court did not need to know what was really going on. I reject that.
In terms of attitude to parenting in general, I am comfortably satisfied that the father has runs on the board in terms of promoting the mother's relationship with X. He has a much more positive attitude to the mother spending time with X. I consider that he has a track record, though not perfect, of being much more reasonable in terms of promoting that relationship.
In terms of family violence issues and the like, I have already addressed those, and I do not propose to address them any further. I note there is currently a family violence order, which is somewhat unfortunate, and it seems to have had the impact that the mother could not attend X's concert in October last year, which is unfortunate, but it is not a matter that can be foisted upon the father.
Turning then to section 60CC(3)(l) and the potential of future litigation, the Court cannot ever make orders that completely eliminate the risk of future litigation, but my assessment is that the risks of future litigation are greater with the child in the mother's care than in the father's care, given what I regard as the genuine uncertainty about the long-term future planning of the mother and also of Mr E. I am also troubled by what I have regarded as the coercive approach of the mother in terms of expecting the father to "fold", as it were.
In terms of section 60CC(3)(m) - any other fact or circumstance - there are numerous matters that could legitimately be raised here.
It is true that the father was in the relationship with Ms J, as I have referred to, and that he has lived in some five (5) different locations in the local area since separation. There has been that degree of moving around, but the distances involved have not been great, and the child has been maintained at the same daycare; that degree of stability remains.
He was criticised about or questioned about his current living arrangements and said that he lives in the downstairs section of an upstairs-downstairs property. He does not have a formal lease. His friend owns the property. There is no suggestion his friend is going to be evicting him any time soon. His friend knows the circumstances he is in and knows that he is planning to move into the Suburb Q property that he owns with Ms J. Whether he can move into that home depends on whether he and Ms J can negotiate that agreement, but I am not troubled by the moves the father has made in the circumstances that he has made them. He will make such arrangements as, in my view, are appropriate, and it is likely that he will be able to negotiate an agreement with Ms J to move into the Suburb Q property, but even if he does not, he will make some other arrangement.
I have already touched on the father's work hours and the fact that he can care for the child, in my view appropriately. He has other people who can assist, including I might add, members of the mother's family who have found themselves caught up unhappily in this litigation, and I include the maternal grandmother in that.
The father also has other friends and people who are available.
In terms of the family, in my view the mother has significant family support in the City B region. The maternal grandmother said that if the mother visits the area, she can stay at the grandmother's home. The father has no such option in Town C or in the City H area if he were to visit the child up there.
There is a background issue of lesser relevance, but I raise it here, and that is the long-term prospect of either party moving to live closer to the other. In terms of the father, he is in a quite specialised job role, in my view, and his position would not be one that could simply be replicated easily in the Town C area. The largest city to Town C would be City H, which is not much of a distance away, but City H is a fraction of the size of City B.
For the father to move to the Town C region may be possible - he said he would "never say never" - but there are certainly no guarantees. His current employer will not allow him to work on a remote basis full-time. And particularly if he were to move interstate, I accept his evidence that it would be a significant backwards professional step in his career, particularly given the contacts and local knowledge he has acquired in the City B/City F region. In short, the father would look at it, but it would be no easy thing for him to do.
The mother, I have already set out, is working in home duties at the moment. No doubt that is a full-time job to be fair - but she also intends at some point to go back to work. Her employment in administration and in the beauty industry are inherently very transferable.
Likewise in my view, Mr E's work in primary industry, and indeed in other work roles, including in sales and the like - his employment, in my view, is again more transferable than the father's is.
In short, the mother is probably much better placed to be able to move back to City B, where she has family support and work, and where Mr E, in my view, is in all likelihood going to be able to find work, than the father is to go to live near the Town C area, where he has no support whatsoever and where his specialised job places him at a significant disadvantage in terms of any such move.
In terms of weighing the best interests in this case, the Child Impact Report could not identify any information which would indicate that the child's needs would best be met in either parent's care. It was the opinion of CCE Ms D that the matter required a judicial decision, and I, with respect, agree.
There are obviously advantages and disadvantages of each proposal.
If the parties were to live in the same location, clearly in my view this would be in the best interests of X. As I said earlier, I consider that these parties could make that work. But it is not either party's proposal, and I will not elevate the mother's exhibit 3 (fallback positions) to the status of a "proposal" on her part.
The position is that if the child were to live in Town C, she would obviously have the benefit of the mother and her siblings as well as Mr E when he is there and the extended family. They can no doubt teach her aspects of culture, including, seemingly, the CC language which they have been working on. She would be a loved member of that family unit. There are real advantages to her in that.
If the child were to stay living with the father, then the child will be able to continue with him in that primary care role. She will have access to him effectively as an "only child". She will maintain that stability in terms of living in the City B region, as well as, in my view, easier connections with the maternal extended family.
X is a child who has, in my view, turned out well. There is no onus on the mother to establish that a relocation would be compelling or in the child's best interests. There is no specific onus on her. But equally, I cannot ignore the fact that the child has turned out well.
I accept Mr Duane's submission that future parenting orders require Courts to rely on promises and honesty. The Court can only predict what may happen in the future. I have genuine concerns about the mother's evidence as to fundamental matters in this case, as to her attitude, particularly towards the father and his relationship with the child in the context of the relocation planning. I consider that the mother's attitude towards parenting has very much been towards maximising her own time with X, including in my view going against the spirit of the interim orders. And it is well and good to say that the mother was only seeking to maximise her time with X, but the flipside is that every moment that she spent with X was a moment she did not get to then spend with her father, who was also entitled to be able to live his life as well.
It is true that the father could be also criticised for his approach to some of the orders. As I have indicated, in terms of the second visit he held the mother to being two (2) days short of the one month's notice. In relation to the dispute about how the March 2022 orders operated, on his interpretation of the orders the mother was not allowed to spend any time with X in Queensland potentially for several months. Nonetheless, weighing up what everyone has done in this case, on balance I am satisfied that the father has the vastly more positive attitude to promoting the mother's relationship with X than she has towards his relationship. I consider that the father is better able to facilitate the mother's relationship with X than she can do in reverse.
I consider that if the child stays with the mother, there is a real risk of her relationship with the father withering over time - that I do not see being the case in the reverse. Relationships from a distance require active support, which the father in my view appropriately gives, but the mother's attitude in my view has been to a large degree self-focused in terms of expecting the father to simply "cave in." As Mr Duane said in submissions, if the mother has the care of X it will not be a difficult thing to imagine that in the longer term, things such as birthday parties and the like might end up taking priority over the father's time and that he might be expected to simply "give in." I regard these as legitimate and genuine concerns. They do not arise if the parties live in the same locality.
I also consider that the father offers more stability than the mother in terms of his future residence. I do not know where the mother will be living in a year or two or three. I simply do not. Her false evidence and that of Mr E have cast a long shadow over her case.
If the parties were to live in closer proximity, which is not something I necessarily expect to happen, but if they were, the mother in my view would be much better placed to live back in the City B region than the father to live in the Town C region.
In all of the circumstances, and weighing up these matters against the advantages as well of the mother's proposal, I consider that X should stay living with her father and that it would be in her best interests that she do so.
THE STATUTORY PATHWAY:
In terms of the statutory pathway, the parties agree on equal shared parental responsibility. Nothing more needs to be said.
In terms of time and practicability, I have had regard to the mother's proposed exhibit 3, which, with respect, is much more detailed and fundamentally much more appropriate than the father's proposed form of orders in his Initiating Application which led to some of the problems that the parties encountered following the making of the orders of 17 March.
It suffices to say that I am satisfied that the orders I intend to make are not only in the child's best interests but are "reasonably practicable" as that term is understood in the context of section 65DAA(5).
I turn then to the orders I propose to make, and these are by reference to exhibit 4, which is the mother's proposed order with the father's ticks and crosses, as it were.
CONCLUSION & ORDERS:
For these reasons, I propose to orders set out at the commencement herein.
Obviously, there is a lot to read in terms of the orders, and they will have to be typed, and I would expect to get them to the parties this afternoon.
I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 12 May 2023
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