Bale & Bale
[2016] FCCA 680
•17 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALE & BALE | [2016] FCCA 680 |
| Catchwords: FAMILY LAW – Relocation – young child – mother is primary parent – mother’s need for actual and emotional support – attached and successful relationship between child and father – relocation permitted. |
| Legislation: Family Law Act 1975 |
| Cases cited: McCall & Clark (2009) FLC 93-40 MRR & GRR (2010) 240 CLR 461 Paskandy & Paskandy (1999) FLC 92-878 |
| Applicant: | MS BALE |
| Respondent: | MR BALE |
| File Number: | MLC 1393 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 17 & 18 March 2016 |
| Date of Last Submission: | 18 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stoikovska |
| Solicitors for the Applicant: | Cantwell Family Lawyers |
| Solicitors for the Respondent: | In Person |
ORDERS
That the parents MR BALE (“the father”) and MS BALE (“the mother”) have equal shared parental responsibility for X born (omitted) 2012 (“the child”).
That the child live with the mother.
That the mother be permitted to relocate the child’s primary place of residence to Brisbane in Queensland.
That the child spend time and communicate with the father as follows:
(a)For periods of three (3) consecutive nights in Victoria on three occasions (3) during the remainder of 2016 with the father to book and pay for the airfares (including for an accompanying person) and to give the mother not less than 28 days’ notice of each event and the mother to reimburse the father one half of the air travel costs within seven (7) days of receiving a copy of the invoice or similar evidencing his payment provided that there be a minimum of four (4) weeks between the conclusion of an event and the commencement of the next event.
(b)During 2017 on six separate occasion and for periods of four (4) consecutive nights in Victoria and otherwise in the same terms as Order 4 (a) above and continuing in 2018 if the child is not enrolled in school or kindergarten in that year.
(c)In 2018 but subject to order 4(b) hereof and thereafter then in each term school holiday from the first Saturday until the second Tuesday with the father to book and pay for the airline tickets including for an accompanying person and the mother to reimburse the father for one half of the airfares within seven (7) days of being provided with a copy of the invoice or similar evidencing the payment.
(d)During each summer school holiday for a period of three (3) weeks to commence on 24 December in 2018 and each alternate year thereafter and from 26 December in 2019 and in each alternate year thereafter and otherwise in the terms of Order 4(c) above.
(e)At any reasonable time in Queensland upon not less than 21 days prior written notice to the mother provided that such times do not conflict with the child’s school holiday time with the mother pursuant to these Orders provided that should the father elect to relocate to Brisbane as a primary place of residence then liberty is given to either parent to apply in relation to X’s time with the father.
(f)At any other time, or variation of the above, as agreed between the parties in writing from time to time.
(g)By telephone, skype or similar at any reasonable time.
That these Orders authorise each of the parents to attend on the child’s school teachers and/or doctors and to receive all information normally afforded to parents.
IT IS NOTED that publication of this judgment under the pseudonym Bale & Bale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1393 of 2015
| MS BALE |
Applicant
And
| MR BALE |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the parties’ one child, X, born (omitted) 2012 (aged three years).
The emphasis in this application is the mother’s wish to relocate with X to live in Brisbane and initially do so with her parents.
Both parties propose an order that they have equal shared parental responsibility for X.
The mother argues for an order that X live with her and spend time with the father on a graduated regime during school holidays initially for three nights in each term holidays and moving to one week as from 2018. She suggests two periods each of three nights during the summer holidays in 2016/2017 moving to two weeks in 2018/2019. In addition, she proposes that Mr Bale spend time with X in Brisbane on one weekend per month at his expense upon one month’s notice. She anticipates contact between father and child through various media. She seeks several specific issue orders in respect of medical issues, schooling and overseas/interstate travel, together with a non-denigration order.
The father’s Response asks for an order whereby the mother remain living in Melbourne with X and the child spend equal time with the parents on a week-about basis. During the course of the trial the father’s position changed in detail and in particular his statement from the witness box that he would move to Brisbane should the Court accede to the mother’s application. In addition, the father amended the thrust of his application to allow some graduating regime leading to equal time. In essence, therefore, the father seeks equal time with X whether or not the child and the mother live in Melbourne or in Brisbane.
Confronted with the father’s revelation of a possible move to Brisbane, the mother maintains the orders that she seeks, in any event.
The mother’s case
The mother says that X’s best interests are not served by orders for him to spend equal time between his parents. She says the parties have a toxic, untrusting and uncommunicative relationship. She says that she has been the primary carer for X. Importantly, she argues that X has suffered serious behavioural issues which the father has not necessarily acknowledged and which she and various experts relate to the difficulties the child experiences from the acrimonious relationship between his parents and particularly following changeovers between the parents.
She says that she herself has endured emotional and psychological issues and argues that she needs the support of her parents who live in Brisbane given that such actual and emotional support is not necessarily forthcoming from the father himself or from his extended family in Melbourne.
The mother is a self-employed (occupation omitted) and says that the actual support from her parents in Brisbane will allow her to more fully and productively pursue her employment. Her argument in this respect continues that her financial position would be significantly improved and stabilised by her living in Brisbane with the support of her parents. She proposes that she would initially live with her parents.
The mother alludes to “family violence” during the relationship in its broader sense of the definition under the Family Law Act 1975 (“the Act”). She references instances of emotional “violence” with the implication that her overall parenting capacity would be enhanced by a combination of fewer transitions for X to the father, the hands-on support of her parents and placing a geographical distance between herself and Mr Bale.
The father’s case
Mr Bale argues that he has a close, bonded and loving relationship with X, as do members of his extended family. Whilst he acknowledges the communication difficulties between Ms Bale and himself, he says that there has been improvement in this respect with the assistance of some counselling and that he is confident that the parties can work towards a cooperative and communicative relationship for the benefit of X.
Mr Bale says that he now acknowledges that X has and continues to suffer some emotional and behavioural difficulties but that these can be attended to by his acknowledgement, better communication between the parents and expert counselling for the parents and X.
Mr Bale argues that X, at only three years of age, needs frequency of direct contact with his father and his extended family in order to maintain those relationships.
Mr Bale generally questions the bona fides of the mother’s application to move with X to Brisbane arguing that she has lived away from her parents for a considerable time and is a mature professional who has established personal support networks in Melbourne. He says that he and his family can offer any necessary support for the mother in her parenting of X and the implication being that a regime of equal-time for X between his parents would allow the mother to more productively pursue her profession. Further, he argues that, in any event, the mother’s historical relationship with her parents has not always been a good, close or supportive one.
Mr Bale effectively denies the mother’s allegation of family violence and suggests that she embellishes or exaggerates such allegations in order to shore up her own case which is simply a personal desire to relocate to Brisbane or, more maliciously, her aim since separation being to thwart his relationship with X and to isolate him from the child.
Mr Bale, who is a (occupation omitted), now says that he would be prepared to move to Brisbane (although as a reluctant option) should the Court allow a relocation of his son.
Mr Bale represented himself before this Court. He did so in an efficient and professional manner. His cross-examination was intrusive and to the point. At all times, Mr Bale conducted himself with the utmost courtesy to the mother, the witnesses, counsel and the Court.
Background
The father is 41 years of age. The mother is 40 years old. They commenced cohabitation in Victoria in (omitted) 1999 and married on (omitted) 2007. Separation occurred in February 2014.
The mother is a (occupation omitted). The father is a (occupation omitted) who has (employer omitted) for the past eight years. He is now on leave from that employment which he says was taken for a combination of him preparing and prosecuting his case before this Court and to deal with his own emotional issues.
The father lives in (omitted) in a two-bedroom apartment. His mother lives close by in (omitted) and has historically spent frequent time with X. The father has a brother and cousin, both with children, who live in close proximity to him and who have regular contact with X.
The father has re-partnered with a Ms H. She provided an affidavit but was not required for cross-examination.
The parties lived for about a year in Brisbane in 2005 and initially with the mother’s parents.
The mother lives in (omitted) in a home substantially “mortgaged” by a loan from her parents. The mother estimates her income to be limited to the range of $45,000-$55,000 from what is effectively part-time employment by reason of her commitment to being the primary parent of X.
There is no evidence before me that the mother has re-partnered.
From early 2015 the mother says that she has witnessed and endured behavioural difficulties in X. She says that he suffers from night terrors. She says that he soils himself and spreads his faeces. She says that such behavioural and anti-social episodes have also been witnessed by his crèche/kindergarten teachers. She says she observes X to be “pathologically sensitive”. She relates these behaviours to difficult transitions for X between the two households and as a response to his understanding of the toxic relationship between the parents.
Following their separation in 2014 the parties entered into various parenting plans. In March 2015 the mother commenced proceedings in this Court for parenting and financial orders. The financial issues have been resolved.
X currently spends time with the father on alternate weekends with one week day overnight period.
The mother first proposed a relocation for herself and X to Brisbane by way of an amended application filed in November 2015.
Family Report
The Court was greatly assisted by a family report dated 26 January 2016 prepared by a family consultant, Mr P. That report is comprehensive and composed after numerous interviews including with the paternal grandparents and apparently involving home visits.
Not unusually, Mr P, whilst referencing the proposed relocation of X, does not make any specific recommendations for or against a relocation of the child.
Mr P notes the mother reporting that she has historically felt a lack of support from Mr Bale. She references her own psychological and emotional issues and her need for professional help. She also references what she saw as the father’s “psychological, emotional and financial abuse” as well as “being subjected to his threats and physical intimidation”.
The mother reported to Mr P of her observations as to X’s behavioural issues and that she sought advice from doctors and psychologists. At [21] of the report, Mr P notes:
Ms Bale thinks that X is at risk of “permanent emotional and psychological damage” if he remains in Melbourne having regular contact with his father. She feels she will remain a victim of Mr Bale’s mistreatment if she remains in Melbourne and stated “I don’t want X to learn this is the way you treat people”. She is concerned that X will be exposed to the same emotional and psychological abuse she received and admitted “I feel my story of abuse is intertwined with X”. Ms Bale feels that as she is X’s primary care giver, her well-being is integral to X’s well-being.
Ms Bale advised Mr P of the difficulties that occur at changeovers for X and between the parties.
Mr Bale confirmed to the family reporter that the relationship between the parties was highlighted by “constant argument” and that “our issues were never resolved”.
Mr Bale confirmed to the reporter that the parents had sought relationship counselling before their separation.
At [35], Mr P reports:
After lengthy negotiations at court, he began the current care arrangement of having X for three overnight periods a fortnight. Mr Bale is aware that X has been having adjustment issues and stated, “I’m trying to co-parent with Ms Bale but she’s not trying to co-parent with me.”
And at [37], Mr P reports:
Mr Bale does not want to disrupt X’s primary attachment to his mother by applying to be his main care giver. He is aware X needs to gradually build up time with him and that he and Ms Bale need to work together to overcome X’s current behavioural issues. Mr Bale stated he has worked with children for 15 years as a (occupation omitted) and is aware of child developmental stages. He admits that his communication with Ms Bale is poor and there is a lack of trust between them. However he does not see how they can work on those issues if she moves to Brisbane with X.
In his evaluation at [40] Mr P observes:
There appears to be no doubt that X is not coping with the conflict and ongoing tension between his parents. His concerning anti-social behaviour has been observed by his paternal and maternal family, including his parents.
Importantly, at [42-43] Mr P opines:
Ms Bale does not know what X is like when he is with his father because of the poor communication between the parents. However she believes he suffers from separation anxiety when he is away from her and finds it hard to believe that he is not displaying similar concerning behaviour when he is with his father. I do not know if Mr Bale is minimising X’s behavioural problems or whether X “settles down” when he is with him. Mr Bale has been involved with primary school teaching for over 10 years and has been exposed to behavioural problems with children during that time. He would have developed child management strategies during that time.
It is likely the professional expertise he has developed with children helps him manage X’s transitional adjustment problems in a more successful manner than Ms Bale. Ms Bale has been described by her professional supports as having suffered from severe stress, severe anxiety, trichotillomania and depression. These conditions took place toward the end of the marriage and after separation.
At [44] Mr P suggests that X may have absorbed the emotional effects on Ms Bale of the disintegration of the marriage and “is not emotionally and psychologically coping”. Significantly, the family reporter notes that the proposed move to Brisbane will have advantages that are “short term economic” and child care support benefits for her during the period of time she lives with “her parents”, (but) her main reason for the move is to avoid the emotional distress of having to deal with Mr Bale.
Mr P insightfully isolates the major issues for this Court at [46] where he says:
The main issue that needs to be resolved is how to minimise the negative impact on X of (i) either his removal from his father and extended paternal family network, if he moved to Brisbane with his mother, or (ii) the emotional and psychological stress he is suffering being exposed to his parents’ conflict and poor communication if he and his mother remain in Melbourne. The stress and anxiety experienced by his mother is having a ripple effect on X.
X will have a low quantity and quality relationship with his father and paternal family if he lives in Brisbane with his mother. If he remains in Melbourne with his mother, Mr and Ms Bale would need to work together to minimise the effect their conflict is having on X. The more distressed Ms Bale is, the more it will have a negative impact on X’s well-being. To date, Mr and Ms Bale have not been able to achieve co-operative parenting and X has suffered as a result.
Mr P gave evidence by telephone and was cross-examined by counsel for the mother and by the father. His evidence effectively confirmed that in his report that there is an importance of frequency in direct contact for young children with each of their parents. He is of the view that, therefore, “quality” and “quantity” of such contact are inherently related, at least in younger children. Mr P acknowledged that, should there be a relocation, then longer block periods of time between the children and the father (if the father remains in Melbourne) would have positive benefits and suggested that the existing relationship between X and his father and extended family, despite the child’s young age, was suggestive of X being able to “cope” with such periods away from his mother and perhaps periods longer than anticipated by the mother in her proposed orders.
Other Witnesses – Evidence.
The mother relied on her affidavits sworn 16 December 2015 and 15 February 2016.
The mother presented as an honest and considered witness. I observed the mother give her evidence in light of the father’s suggestions that the bona fides of her proposed move with X to Brisbane were self-interested and/or made with an intent to deprive him of a relationship with X. To the contrary, I observed the mother to be, at least subjectively, sincere in her motives and her relating of her version of the history of the relationship with Mr Bale and the personal impact on her as well as her understanding of X’s behavioural issues and her observations of his reaction to the difficult relationship between the parents.
The mother essentially confirmed her affidavit evidence and her reporting to Mr P that she had suffered psychologically and emotionally as a result of the marriage itself and its breakdown. She confirmed that she had required ongoing psychological assistance and that I observed her to be somewhat vulnerable and dependent in her personality and disposition. I gleaned no ulterior motive of either self-interest or malice but rather that she is the mother of an only child who she perceives as suffering behavioural issues and where she is having difficulties coping with those difficulties and with a lack of practical and emotional support. For example, she alluded to a situation in early 2015 when she sought the assistance of the paternal grandmother to care for X on a particular afternoon whilst she pursued her work. She deposed to an initial acceptance by the grandmother but soon thereafter followed by a refusal based on the grandmother being of the view that the difficulties between the parents were such that she thought she should not assist. The effect of this isolated event on the mother’s demeanour, as observed in the witness box, was palpable together with her more generalised frustrations at her poor, uncommunicative and uncooperative relationship with Mr Bale.
The mother emphasised her need for support, actual and emotional, in her parenting of X and that she thought such support not forthcoming from Mr Bale or his family.
The mother expressed her frustrations as to the failure of Mr Bale to accept the veracity of her concerns in respect of X’s behaviour and her attempts to address these issues.
In her evidence, the mother was able to objectively acknowledge the need and benefits for X in having a meaningful relationship with his father and the father’s family.
Not surprisingly or unusually with a litigant in person, the father’s inclination was to cross-examine the mother as to historical factual matters asserted by her rather than a focus on X’s future needs and care arrangements. I observed this to be a difficult experience for the mother although she did not retreat to any degree in what was for her a lengthy, emotional and intrusive cross-examination. Indeed, her consistent and considered responses in cross-examination served to emphasise and corroborate my observations, and those of her professional assistants, of a mother who suffers her own psychological and parenting difficulties but one whose focus is on the needs and best interests of her young son.
The father’s cross-examination of the mother involved numerous particulars of e-mail correspondence to them which served to emphasise the difference in the personalities of the parents being that the father might be more “mechanical” and assertive in his personality as opposed to the mother’s own tendency towards emotional fluidity. Whilst the father’s questions suggested continuing suspicion of the mother’s motives, her responses were indicative of a vigilant (perhaps over-vigilant) mother who is acutely aware of any behavioural variances in her child but one frustrated in her own inability to rectify those problems and one who suffers the frustrations of a lack of perceived support. In short, the cross-examination served to confirm what both parties say is their ongoing difficulties in communication.
The father’s affidavit material suggests an inclination by the mother to act unilaterally in respect of X and perhaps to support the father’s contention that the mother has ulterior motives. The evidence, however indicates to the contrary, that the mother has attempted to keep the father advised of her concerns in respect of X but that the father has preferred to be at times dismissive of the mother’s advice or, alternatively, has attributed her notifications as to what he sees as her more sinister motive. Clearly, communication between these parents being confined to e-mails rather than direct conversation has not been of assistance for either of them in dealing with their mutual lack of trust.
Ms L – Maternal Grandmother
Ms L provided an affidavit sworn 25 January 2016. She is a (occupation omitted). Not surprisingly, Ms L was sympathetic to her daughter’s case and partisan in her evidence. Ms L at one stage described her daughter as “an independent young woman” whilst also alluding to Ms Bale’s need for support with X. Ms L did not seem to have the same degree of understanding as her daughter in respect of a general need for X to have a frequent and meaningful relationship with his father and the tone of her evidence in respect of the father was at times inclined to the critical.
Nevertheless, I am satisfied that Ms L is able and willing to provide physical and emotional support for her daughter and X. To this end, Ms L gave evidence that the maternal grandparents have been, subject to their own employment, able to make nine or ten trips in the last year to Melbourne. She also gave evidence as to the considerable financial support given to Ms Bale and as to the strong and supportive extended family available to them.
Ms A
Ms A is a clinical and consultant psychologist. She has been assisting the mother for some time and her evidence confirmed that the mother has and continues to require assistance in respect of her emotional lability. Ms A emphasised the mother’s need for considerable support in her parenting of X. Ms A acknowledged that her evidence is based on the post-modernist forensic model of unquestioned reliance on the veracity of the mother’s reporting of history but maintained her opinion as to Ms Bale’s emotional susceptibility.
Dr R
Dr R gave evidence by telephone. Her affidavit was sworn 25 January 2016. She is a general practitioner. She has the benefit of material from a psychologist, Dr M, as well as X’s paediatrician. She confirmed that X has developed behavioural problems which she opines to be connected to separation anxiety from the mother. Dr R alluded to the benefits of the mother relocating with X as a positive for X’s “emotional well-being”.
Dr R’s evidence essentially corroborates that of the mother in respect of X’s behaviour, her own responses and her perceived lack of support.
The father – Mr Bale
I also observed Mr Bale to be an honest witness whose primary motivation is altruistic and to his perceptions as to X’s best interests. His evidence in the witness box was considered and consistent. I detected no ulterior or malicious motives in respect of his former wife. His oral evidence did, however, serve to demonstrate his own particular personality which is quite obviously very different than that of Ms Bale and indicative perhaps of the difficulties in their marriage, the marriage breakdown and their ongoing lack of communication and trust in respect of their young son. Mr Bale is an articulate and intelligent man who quite clearly has much to offer X. Nevertheless, and despite some acknowledgements in the witness box, my impression of him was of a person who remains suspicious and untrusting of X’s mother. He is clearly a contributor to the communication difficulties between the two and remains unable to accept or understand the particular vulnerabilities and dependent personality traits of Ms Bale.
Mr Bale’s altruism is highlighted by his revelation in the witness box that he would be prepared to move to Brisbane if the Court permits the relocation of his son. Nevertheless, his evidence as a whole and in this particular instance, demonstrates a certain naivety in his understanding. He proffered no evidence which would assist the Court in coming to a determination that such a move and involving equal time for X between the parents could be in X’s best interests. There was no evidence as to his employment ambitions or prospects. There was no evidence as to his proposed accommodation or financial support for X. There was no understanding in this proposal of a need for the mother to still have his own acknowledgement and support in her parenting of X. In summary, this proposal by the father served only to corroborate what I observed as to be an entirely pragmatic response but one lacking insight into the emotional needs of a young child. In this respect, Mr Bale presented as somewhat “mechanical” and emotionless in his response which in many ways was contrary to his own demeanour which was generally softer and more thoughtful. Unfortunately, I suspect that Mr Bale has suffered to a degree as a result of acting for himself at the trial of these proceedings and not benefiting from experienced legal advice as to the focus of the Family Law Act on the intricacies of children’s needs and relationships. Whilst Mr Bale did not give the impression of “parenting as of right” he seemed unable to understand the more delicate and discreet needs of his son perhaps being masked by his tendency towards suspicion.
Mr Bale’s evidence generally was that X was happy and settled in his home. He initially deposed to not being exposed to the child’s behavioural difficulties seen by the mother but later relaxed in this evidence to a degree. Nevertheless, the tenor of Mr Bale’s evidence was towards blaming the mother’s inability as a parent or her own personality or indeed a continuing suspicion as to her motivation for those problems. He was able to acknowledge, however, that the mother’s observations had been corroborated by X’s kindergarten and by some health professionals.
Mr Bale was able to acknowledge his own past psychological issues and this may explain in part the nature of his evidence and understanding.
Overall, however, Mr Bale’s evidence confirmed that he has an established, loving and in many ways successful relationship with his son. He craves and prioritises his relationship with X but seemed unable to differentiate between quantity and quality of that relationship.
Mr Bale offered a willingness to work on the communication difficulties between himself and Ms Bale but suggested that an improvement in this respect might be the simple and sole solution to X’s difficulties.
Ms H – Paternal Grandmother
Ms H provided an affidavit sworn 15 February 2016. She is unambiguously devoted both to her son and her grandson. She has been and is willing to continue to provide actual and emotional support for both. However, she was often dismissive of the assertions put to her in cross-examination as to the mother’s personal and parenting difficulties. She was unable to acknowledge the effect on the mother of her refusal to assist on a particular occasion in caring for X. Whilst giving her best effort to impress the Court as to her relationship with X and Mr Bale, unfortunately Ms H’s evidence served, in a large degree, to corroborate the mother’s assertion that she might not be able to rely on the objective assistance and support of the father and his parents should the mother be required to remain in Melbourne with X.
The Relevant Law
Matters involving a proposed relocation of a child and in particular a young child are among the more difficult ones coming before these Courts. Unlike the majority of parenting matters which often involve only discrete disputes as to actual time between children and parents, the relocation of a child will inevitably leave the remaining parent aggrieved and with a significant sense of loss. The nature of the relationship between that child and the parent will almost surely be changed in its frequency and, therefore, in its nature. Relationships for the child with extended family members will be impacted. The feelings of loss will often be accompanied by a sense of bitterness to the parent successful in the relocation of the child resulting in future mistrust, communication difficulties, lack of flexibility and lack of co-operation. The remaining parent will be denied a relationship of flexibility or spontaneity. Opportunities for involvement in the child’s schooling and extracurricular activities will be made onerous and often lost altogether. Practical issues arise in respect of travel and the costs of such travel. Children, as they grow older, develop personal relationships which test the durability of any Court ordered time-with arrangements.
To the contrary, however, orders obligating an unsuccessful applicant to live in a location other than their preferred one will inspire similar loss and bitterness. Feelings of blame might understandably be placed on the other parent and again resulting in a loss of trust, flexibility and co-operation. A parent left without perceived family or other support may suffer consequent difficulties in their own parenting capacities and the nature of the relationship of the child with that parent may also be negatively impacted. As such, the nature of parenting matters involving a relocation inevitably bring with them a sense of “win” or “lose”. The Court is therefore left with little or no room for subtle construction in its orders.
It is important to emphasise that the jurisdiction of this Court deriving from the Act is first and foremost in respect of children. Whilst a Court can allow or prevent the relocation of a child as part of a parenting order, it cannot usually, per se, prevent the freedom of movement of an adult. Such has been recognised some time ago by the High Court[1] which obliges trial judges to consider the “right of freedom of movement” of an adult but subject always to the best interests of the child.
[1] AMS & AIF (1999) CLR 160
The Act itself is silent as to the notion of relocation. It follows that relocation is expressly neither prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one factor to be considered among numerous others in arriving at order which, on balance of the probative evidence on the parties’ proposal, are in the best interests of the child.
Significant amendments to the Act in 2006 enlivened judicial and academic debate as to the impact, if any, of those amendments on historical authorities in respect of the relocation of children. The later Full Court authorities indicate that the extraction of relevant principles by previous superior courts remains valid. Similarly, the Full Court in Taylor & Barker[2] confirmed the authority of Paskandy & Paskandy[3] that there can be no dissection of a parenting matter into discrete issues of, firstly, who the child shall live with and then a further or separate issue as to whether a relocation should be “permitted”. The Court in the former matter observed:
In our view, his Honour dealt with the relocation proposed in the context of his considerations of s60CC and s65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to the s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[2] (2007) FLC 93-343
[3] (1999) FLC 92-878
It is trite to note that the Act at s60CA obliges a court to make orders which have the child’s best interests as its paramount consideration.
Nevertheless, the peculiarities of matters involving relocation have seen the High Court in MRR & GRR[4] emphasise the dual requirements of parenting orders to be both in the child’s best interests and “reasonably practicable”. Such considerations are important where trial judges are legislatively mandated, upon the finding of equal shared parental responsibility in parents for their children, to follow a statutory and intellectual course of consideration including whether the child spends “equal time between the parents” or “substantially and significant time between the parents”. The latter notion is defined in the Act as involving time for a child with a parent on both weekends and week days and which allows the child and the parent to be mutually involved in each other’s activities and interests.
[4] (2010) 240 CLR 461
In the matter now before me, of course, the orders sought by the father are for “equal time” for X between his parents. The orders sought by the mother involve a relocation which would deny either “equal time” or “substantially and significant time”.
Significantly, the High Court in MRR & GRR (supra) noted at [15]:
Section 65DAA (1) is concerned with the reality of the situation of the parents and the child, and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s65DA(1) is not determinative of the questions arising under s65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in (Mount Isa), (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
An examination of relevant Full Court decisions[5] since the 2006 amendments demonstrate, in my view, that historical principles extracted in relation to matters involving a proposed relocation remain valid. They can be summarised as follows:
·Relocation matters are to be determined generally with reference to part VII of the Act;
·The child’s best interests remain the paramount but not the sole consideration;
·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child’s best interests (section 60CC matters) and, where appropriate, section 65DAA (reasonably practicable);
·The Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
·Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
·An applicant for relocation need not show “compelling reasons” in support of the relocation but must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and
·The child’s best interest must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement but that such an adult “right” must ultimately defer to the child’s best interest.
[5] Taylor & Barker (supra), Sealey & Archer [2008] FamCAFC 142: Starr & Duggan [2009] FamCAFC 115, and McCall & Clark (2009) FLC 93-40
As mentioned above, the starting point of the Court’s consideration is the presumption at s61DA of the Act of equal shared parental responsibility by parents for their children. Parental responsibility can be defined as all the duties, powers or responsibilities and authority which parents hold in respect of children by reason of law. Such responsibilities usually manifest in long term and important decisions for children in respect of issues such as education, religion, medical procedure and the like.
The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse of a child. Alternatively, the presumption can be rebutted by evidence satisfying the Court that such an order would not be in the child’s best interest. In the matter now before me and despite the mother’s assertions as to family violence, both parents propose an order for equal shared parental responsibility. If such an order is made then the Court is mandated to consider, firstly, whether X should spend equal time between his parents which, of course, is the father’s case and whether such a regime is reasonably practicable. If the answer to either of those questions is in the negative, then the Court must then turn to consider whether it is in X’s best interests and reasonably practicable for him to spend “substantial and significant” time between his parents.
The framework for determining X’s best interests is provided in section 60B of the Act by way of the objects and principles of the legislation in the following terms:
(1) The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
(2) The principles underlying these objects are that (except when it would be contrary to a child’s best interest):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court then is obligated to reference each of the statutory considerations set out in sections 60CC(2) and (3) of the Act, divided into “primary” and “additional” considerations and in respect of the probative evidence and the proposals of each of the parties in order to ultimately arrive at a determination and orders that are in the child’s best interests.
Whilst those considerations are categorised as “primary” and “additional”, there is no hierarchical importance and each matter is to be considered as to its own peculiar factual platform and weight to be attributed accordingly. The only caveat to this is that recent amendments to the Family Law Act stipulate that a Court is to place “greater weight” on matters of family violence.
The Section 60CC Factors
S60CC(2)(a) - The benefits to a child of having a meaningful relationship with both parents.
If only by reason of his later living arrangements, it is clear that X has a primary attachment to his mother. The evidence also suggests that this is a dependent relationship. The mother’s observations of X’s behaviour in her care and post return from his father, can be seen as indicative of that close relationship in that it is entirely plausible that X picks up on his mother’s vigilant and vulnerable personality and the difficult relationship between the parents.
The father says that X has a bonded, comfortable and successful relationship with him. He says he does not witness the mother’s assertions as to X’s behaviour as asserted by the mother, when the child is in his home. His own mother corroborates this evidence. Despite the father’s suspicions, this apparent contradictory evidence between the parents is not necessarily so. That is, it may be that each of the parents is being honest in their observations as to X’s behaviour and as noted by the family reporter in that X’s behavioural difficulties are a factor of his understanding of his mother’s demeanour whilst he is equally able to settle easily with his father.
Mr Bale argues that X is still very young and that the relationship between father and child may therefore not be able to endure the mother’s proposed relocation of X in that the frequency and quality of the relationship will be lost. This is, of course, a most relevant consideration for the Court. Nevertheless, this consideration is not, of itself, determinative of the ultimate best interests of X but simply one factor to be considered with the numerous others in the ultimate determination of X’s best interest.[6]
[6] Champness & Hanson [2009] FamCAFC 96
Importantly, the Full Court in McCall & Clark[7] (supra) has endorsed the adjective “meaningful” in qualitative rather than quantitative terms and opined that the inquiry for the Court should be a “prospective” one but also one obviously considering the evidence as to the current nature of the relationship between child and parent.
[7] (2009) FLC 93-40
The issue for the Court, therefore, is, upon a consideration of the current strength of the relationship between this young child and his father, whether such a relationship could endure a possible relocation away from his father (not forgetting, of course, Mr Bale’s claim that he himself would relocate if the child was to move to Brisbane).
S60CC(2)(b) - The need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The term “family violence” has an extremely broad definition in the Family Law Act and certainly one much wider than is often in common usage in the community. Violence involves matters of psychological and/or financial abuse and is not limited to its physical manifestations. As such, issues of violence must be considered within the context of the particular personality characteristics of the participants.
The mother’s affidavit emphasises (to a much greater degree than her evidence in the witness box) issues of family violence. The language in her affidavit is, on occasions, melodramatic and therefore unconvincing. For example, at [5] of her affidavit of 15 February 2016 the mother deposes:
Mr Bale prevented me from providing a happy, healthy and safe environment for my son. He terrorised me and made me feel constantly unsafe and afraid in my own home. The worst of this occurred at the time X was between 14 months to 20 months old. Our life at this time was dysfunctional and toxic. The abuse that I experienced from Mr Bale included physical intimidation, psychological and economic abuse and threats of violence.
He drank excessively, often staying out late or all night, and returning home intoxicated and would often be aggressive and argumentative and at other times he would be sexually aggressive towards me. I appealed to him to stop drinking or to at least reduce the amount he was drinking but he said that he did not believe that his drinking had any effect on the family.
The mother deposes that Mr Bale was prone to episodes of anger. She accuses him of driving erratically and dangerously causing her to be in “fear of my life”.
Ms Bale accuses Mr Bale of humiliating her “both physically and verbally in front of friends”. She says that he isolated her from friends and family. She says that he questioned her “aggressively”.
At [12] of that same affidavit, the mother deposes:
On another occasion Mr Bale was arguing aggressively with me in the hallway of our home as X stood next to me. Mr Bale grabbed X by the arm and pulled him away from me, which resulted in X losing his footing, slipping on the floor and crying. It was clear to me at this moment that X was in physical danger by staying in this household and I began to take every opportunity to get out of the household with X when Mr Bale was around.
The mother says that her self-esteem was low due to the father’s behaviour towards her.
The mother concedes that she did not notify police or make application for an intervention order.
The mother says that this “family violence” has continued post separation and at [19] asserts that “…the abuse and controlling behaviour has continued and is a constant burden in my life.”
Mr Bale is essentially disputing, dismissive or underplaying of the mother’s assertions. He attributes the mother’s allegations to either selfish desire to move herself and X to Brisbane and away from him or, alternatively, to the mother’s personality disposition. It is an agreed fact that the mother has had ongoing psychological assistance to deal with her emotional issues and including during the marriage which evidence tends to be contrary to the father’s assertions of false allegation and ulterior motive. Further, this evidence is itself suggestive of the mother’s more vulnerable and emotionally fragile personality and emotional state. I have had the benefit of observing the mother in the witness box. She is a woman of 40 years of age who has been able to achieve professional qualifications and expertise. She is generally a capable mother of her young son. I am satisfied, however, that even the usual and expected acrimony of a marriage breakdown would impact to a greater degree on this mother than is understood or acknowledged by Mr Bale. These two parents have diverse personalities. The mother is more compliant in her personality whereas the father is opinionated and assertive in his views. It would not be unreasonable in these circumstances to conclude that their relationship was consequently volatile and subject to regular argument.
The mother asserts that X’s difficulties relate directly to the parents’ ongoing toxic relationship. Medical experts concur with the likelihood of the mother’s “diagnosis”. Certainly, I cannot unequivocally dismiss the likelihood that this young boy’s behavioural manifestations are as a result of his understanding of those difficulties and, in particular, of his mother’s particular reactions.
The mother says simply that putting distance between herself and Mr Bale will assist her in dealing with her responses to what she perceives as family violence. She also says that X would then be relieved of his own negative reactions.
The implication of Mr Bale’s evidence continues to be that the mother has concocted, or at least embellished and exaggerated, relatively minor incidents during their relationship and its breakdown in order to achieve her own ends.
S60CC(3)(a) - Any views expressed by the child and any factors (such as his maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
X is just three years of age. As such, he is not capable of formulating or rationalising any preferences or views as to his living and parenting arrangements.
S60CC(3)(b) - The nature of the relationship of X with each of his parents and any other persons including grandparents or other relatives.
It is entirely consistent for me to accept the evidence of both parents as to the nature of X’s relationship when he is with that parent. That is, although X is still very young, it is plausible that he feels relative degrees of comfort with each of his parents depending upon that parent’s own demeanour. The mother is more anxious and negatively responsive to the poor relationship between herself and Mr Bale. X is closely attached to his mother and it is reasonable to conclude that he picks up on his mother’s anxieties. Similarly, when removed from his mother, he may be more easily able to settle into his father’s home. The mother says that the frequency of transition for X consequently causes him difficulties which manifest in his behaviour.
S60CC(3)(c) - The extent to which each of X’s parents has taken, or failed to take, the opportunity: (i) to participate and make decisions about long-term issues in relation to the child; (ii) to spend time with the child; and (iii) to communicate with the child; and (3)(ca) - The extent to which each of X’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain him.
Mr Bale pays child support in accordance with an assessment. He has indicated a preparedness to continue in accordance with that assessment despite his current reduction of time from his employment or his leave from that employment. This shows an admirable understanding of X’s needs and commitment to those needs.
I am able to conclude that each of the parents prioritises X’s best interests, although they differ as to how they should attend to his needs.
Mr Bale’s failure to acknowledge or accept the mother’s concerns in respect of X’s behaviour reflects only on his suspicious nature and certainly not on any lack of commitment to his son.
S60CC(3)(d) - The likely effect of any changes in X’s circumstances, and the likely effect on X of any separation from either of his parents, or any other child, or any other person (including grandparent or other relative), with whom he has been living.
This is a primary consideration for the court due to X’s young age. It is well established that children, in particular young children, benefit from frequency of direct contact with both of their parents and that such frequency is related to the quality of such relationships. The mother’s proposal would significantly change the nature of X’s relationship with his father (again leaving aside the father’s late proposal to move to Brisbane). Alternative methods of contact such as through various media may not adequately compensate a young child for the loss of direct contact. Nevertheless, the father asserts, and I accept, that he already has an established, comfortable and successful relationship with X which may assist in the child enduring longer periods of absence from his father. As mentioned above, a change for X from the current arrangement of frequent time with his father would also impact on any flexibility and spontaneity in that relationship.
S60CC(3)(e) - The practical difficulty and expense of X spending time and communicating with his remaining parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.
Certainly, the mother’s proposal to relocate X (if the father himself does not relocate) creates onerous travel obligations for X. This could be alleviated to a degree if the periods of time with the father were to involve more lengthy block times than are provided by the current regime. Nevertheless, X is of an age where he would need an accompanying parent to travel with him and this creates still further expense in a circumstance where the mother says that she is already financially strained.
S60CC(3)(f) - The capacity of each of the parents to provide for X’s needs, including physical, emotional and intellectual needs.
Mr Bale takes a more simplistic view of this consideration. He says that he has the facilities, skills and experience to provide for X’s physical needs. He is a (occupation omitted) experienced in dealing with young children. The implication of his proposal is that his commitment to X would allow the mother time to productively pursue her employment and relieve her of some of her claimed anxieties of parenting.
The mother’s case was intrinsically connected to this consideration. She says that she requires support with her parenting of X and that neither the father nor his family can be relied upon for such support. She cites the particular example of the maternal grandmother unreasonably refusing her request for support. She says that that support is available directly from her parents who live in Brisbane and is a more certain committed support than she could rely upon from her various friends in Melbourne who have their own commitments. The mother emphasises that her own anxieties in her parenting require this greater level of actual support. The mother also claims that she will be able to provide better for X in a financial sense if she be permitted to relocate the child to Brisbane. She can initially live with her parents and would propose selling her (omitted) residence and removing her mortgage commitment. The nature of her work is mobile but that her parents would be available to care for X so as to allow her greater opportunities in her profession. I gleaned, however, from the mother’s evidence that the emphasis of her need was for emotional support. Contrary to the father’s suggestions, the mother’s history suggests that she herself has suffered historical anxiety and/or depression and that these are accentuated by her perceived isolation and lack of support in her parenting in Melbourne. The Court is therefore asked to conclude that the mother’s parenting with X would be enhanced by she relocating him to Brisbane and that X would benefit actually and vicariously accordingly.
S60CC(3)(g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristic of the child that the court thinks are relevant.
X’s young age is clearly relevant to the court’s determination. As such, any relocation away from the father would require a commitment by the relocating parent to the maintenance of a relationship between X and his father. Despite her own personal difficulties with Mr Bale, I am satisfied that the mother was legitimate in her understanding of the benefit to X, and his need, of a continuing relationship with Mr Bale. The mother’s parents have shown a financial commitment towards her and X and I am satisfied that, if necessary, they would continue to assist in this respect.
S60CC(3)(h) - If the child is an Aboriginal or Torres Strait Islander.
Not relevant.
S60CC(3)(i) - The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Generally, each of these parents is unimpeached in their commitment towards X. Rather, it is the effect of these parents’ residual conflict and mistrust that sees them at odds as to X’s needs and how to best address those needs.
S60CC(3)(j) and (k) - In family violence involving the child or any members of the child’s family and any family violence orders that are applicable.
These matters have been dealt with above.
S60CC(3)(l) - The order that would be least likely to lead to the institution of further proceedings in relation to X.
The orders that I am required to make are prospective in their nature. As such, a significant or material change in the circumstances of either of the parents or of X may lead to further litigation. Nevertheless, it is the role of this court to make orders which, on consideration of usually less than optimum factual factors, are on balance, in the child’s best interests. It then behoves the parents, armed with such orders, to proceed to parent accordingly and in their child’s best interests.
I am mindful of Mr Bale’s late revelation that he would move to Brisbane if X is relocated. As mentioned above, the lack of evidence in support of such a move does not assist this court in determining whether that move would, in fact, attend to X’s best interests. Whilst admirable in its intent, however, such a proposal has little impact on my overall consideration of X’s best interests and his parenting arrangements. Certainly, as a bald statement of intent, it is in no way determinative of the orders that I make.
Findings and Consideration
X is still a very young child and I am able to conclude that, in isolation, frequency of contact with his father would be of benefit to him. I must consider this finding, however, within the context of the nature of X’s current relationship with his father. Both Mr Bale and his mother assert that it is an established and bonded relationship. Whilst an older child might more easily endure the difficulties of travel and less frequent time, I am satisfied that the ideal for X would be to at least maintain the current frequency of time between he and his father. The mother’s proposal would necessarily significantly decrease that frequency. Nevertheless, this is not a matter where I am confronted with a claim that X’s relationship with his father is a “developing one” or is in any way troubled or there is a lack of bonding.
I am satisfied that X’s primary relationship is with his mother. I am also satisfied that Ms Bale is of a significantly vulnerable and anxious personality type. As such, I dismiss any suggestion or allegation by the father that the mother’s claims in this regard are false or exaggerated or made for self-interested purposes. She has historically required professional assistance and continues to do so.
I am satisfied that this is a mother who requires support in her parenting of her young child and perhaps more than might often be required. Again, I am satisfied that her claims in this regard are both subjectively honest and objective. Equally, I am satisfied that she does not honestly perceive that such support is forthcoming or can be relied upon from the father or his family. History gives her some support here.
I am able to find that the mother has a high level of committed support available to her from her parents in Brisbane.
I am easily able to conclude that the relationship between these two parents remains an extremely tense, uncommunicative and untrusting one. Whilst I am not as pessimistic as counsel for the mother in her final address submitting that “all hope” is lost in resurrecting or creating a functional or functioning communicative and co-operative relationship, certainly there has been little indication of improvement of late and it is likely that considerable time and effort would be required by both parents to achieve any degree of practical trusting co-operative parenting.
I am satisfied that the mother herself honestly perceives that she was the “victim” of family violence within the broadest meaning of the Family Law Act during the marriage and since her separation. It is perhaps unfortunate that the mother’s affidavit material was so emphatic in its language as this would inevitably cause Mr Bale, as a self-represented litigant, to feel that he was obliged to conduct the hearing before me as a form of “defence” rather than to focus on the future arrangements and best interests for X. I am somewhat sympathetic to him in this regard. Nevertheless, I am satisfied that he continues to lack insight and empathy towards the mother’s, at least subjective, responses to the acrimony during their marriage.
I am able to find that X exhibits unusual and serious behavioural difficulties. It is reasonable to expect that he needs professional assistance. On the balance of probabilities, I am able to conclude that X’s behaviour is directly connected to the acrimony between his parents, their own particular responses to each other, their lack of communication and the difficulties, actual and anticipated, at changeovers.
I do not find that there are any mala fides in the mother’s application. I am satisfied that she legitimately and honestly makes her application in what she perceives as X’s best interests. Equally, however, I am not critical of the father in his responses to that application.
On consideration, I am not able to find that a regime of equal time for X living between his parents is in his best interests. These two parents are fundamentally emotionally at odds. They do not trust each other. Their responses to X and his behavioural difficulties are at odds. Their communication is limited to formal use of media. They are suspicious and untrusting of each other. To the contrary, the experts and experience suggests that a successful equal shared time arrangement requires a high level of communication, co-operation, respect and flexibility between parents. None of these traits are immediately evident in the matter now before me. It follows then, as the parties’ various proposals, that X’s best interests are served by living primarily with his mother.
The question remains, therefore, whether X should live primarily with his mother in Melbourne or in Brisbane. In this respect, the father’s proposal has immediate but in some ways superficial attraction. Certainly, X would have the benefit of frequent time with his father which is important at his young age. The parties live in close proximity and no practical difficulties would be apparent. X would also have the benefit of ongoing contact with his extended family who are close to him and on the evidence, he enjoys their company. The father says that he is committed to improving his communication with the mother and that he would offer her practical support in her care of X. The mother’s employment is such that she has contacts in Melbourne and the father’s proposal would allow her to more easily pursue her career to her financial and satisfaction benefit. These are all factors which support the father’s proposal.
There are, however, also a number of positives for X in the mother’s proposal. She is an adult and prima facie has a right of freedom to live where she desires. It is reasonable to conclude that, should she be able to move to Brisbane, then she herself would be more content and that there would be a vicarious benefit to X. Importantly, the mother would have the direct support of her family in Brisbane. This is a factor often relied upon in matters involving a proposed relocation of a child but, in this particular case, there is an established factual background which has allowed me to conclude that this is a mother who legitimately craves and needs a higher level of support in her parenting. Whilst there is no particular psychological evidence that allows me to conclude that X’s particular, but relatively severe, behavioural problems would be alleviated by placing geographical distance between his parents, the evidence satisfies me that alleviating the frequency and nature of transitions between his parents would be of assistance to X. Further, the mother’s proposal is optimistic and reasonably plausible in respect of her enhancing her own career which would have flow on benefits for X.
Matters involving the proposed relocation of the child are often finely balanced in the weighing of the various considerations. This matter is no exception and carries with it the further ingredient of X being still very young. I am of the view, however, that the mother’s personal anxieties and needs are significant including, not least, her need for actual support in her parenting. I am not persuaded that the simple allocation of an equal-time or substantial and significant time regime in Melbourne would alleviate those needs. This is a mother who needs emotional and practical support but in all other senses is an excellent and achieving parent as acknowledged by Mr Bale. Put in a negative sense, I harbour real concerns as to the impact on the mother’s happiness, emotional health and consequently her parenting capacity should she be required to remain living in Melbourne with X. Having found that X’s best interests are served by him living primarily with the mother, I am persuaded that X should be permitted to relocate with the mother to live in Brisbane.
In making this consideration, I am mindful of the mother’s proposals for X’s time with the father. I consider those proposals to be overly conservative in respect of a child whom the father and his mother describe as robust, comfortable, at ease and bonded with the father in the father’s home. As such and supported by the family reporter, I propose that X’s time with the father be of longer durations in Melbourne (or indeed in Brisbane should the father relocate) which will itself have the benefits of allowing X to settle into his father’s home rather than be a “visitor” as might be seen in the current regime or indeed in that conservatively proposed by the mother. I am satisfied on the evidence, as corroborated by Mr P, that X would “cope” with these longer periods of time. Considering all of these matters, therefore, I am satisfied generally that orders that permit X to live with his mother in Brisbane and spend such block and other periods of time with the father is a reasonably practicable arrangement, given the evidence and findings that I have set out above. As both parents are in employment, or have the capacity for employment, I think it proper, just and equitable that they share the costs of any travel for X to Victoria for time with the father. It will be a matter for the father as to whether he applies to have his expenses recognised in any child support assessment. Any additional time in Queensland will be at the father’s discretion and also at his expense.
Finally, in consideration of the father’s claim that he would consider moving to Brisbane and not being satisfied on the evidence that any case was made out in respect of the father’s own relocation, but mindful of his statements from the witness box, then I will reserve liberty to either party to apply in relocation to the father’s time with X should the father elect to reside permanently in Brisbane.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 17 May 2016
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Family Law
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