Barclay and Barclay

[2014] FCCA 87

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARCLAY & BARCLAY [2014] FCCA 87

Catchwords:
FAMILY LAW – Relocation – Darwin to Melbourne – parents of high quality – whether or not the father is likely to relocate too if the relocation is allowed.

Legislation:

Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 94AAA

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR & GR [2010] HCA 4
AMS & AIF (1999) 24 Fam LR 756
Goode & Goode (2007) 36 Fam LR 422
B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-343
Taylor & Barker (2007) 37 Fam LR 461
Sayer & Radcliffe & Anor [2012] FamCAFC 209

Applicant: MR BARCLAY

Respondent: MS BARCLAY

File Number: DNC 178 of 2013

Judgment of: Judge Harland

Hearing date: 20 November 2013

Date of Last Submission: 18 December 2013

Delivered at: Darwin

Delivered on: 22 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Cecil Black Family Lawyers

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

1. That the parties have equal shared parental responsibility for the children [X] born [in] 2002 and [Y] born [in] 2004 (“the children”).

2. That the children be permitted to relocate to Melbourne with the mother at the end of the school term period or the last week of the school holiday period in which this judgment is delivered.

3. That the children live with the mother.

4. That the children spend time with the father during the Victorian Gazetted school holidays as follows:

   1.1In odd numbered years for all of the term 1 school holidays;

   1.2In each year for all of the midyear term 2 school holidays;

   1.3In even numbered years for all of the term 3 school holidays;

   1.4In even numbered years for the first half of the Christmas school holidays;

   1.5In odd numbered years for the second half of the Christmas school holidays.

5. That the parties share equally in the costs of air travel for the children with the father to book and pay for the travel from the airport closest to the mother to the airport closest to the father and provide the mother with the itineraries and details not less than 14 days prior to the intended travel.

6. That the mother book and pay for the travel from the airport closest to the father to the airport closest to the mother and provide the father with the itineraries and details not less than 7 days prior to the intended travel.

7. That the children communicate with the father at all reasonable times.

8. That the parties inform the other in the event of any serious accident, injury or illness suffered by any of the child and all and any medical or other treatment for the child.

9. That each parent be entitled to obtain directly from any school attended by the children, or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each parent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other parent so informed should such details change.

10. That the parents shall each advise and keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 14 days of any change of either their telephone number or residential address, advise the other parent of that change.

11. That in the event the father notifies the mother of his intention to travel to Melbourne, he be permitted to spend additional time with the children for up to 7 consecutive nights, provided the children at all times attend any schooling or extra curricula activities.

12. That if the father moves to the same city as the mother and children, during school terms and school holidays the children shall live equally with each parent on a weekly basis with change-over to occur before school on Mondays.

13. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations of these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Notation

Orders (1), (4)-(13) are made by consent.

IT IS NOTED that publication of this judgment under the pseudonym Barclay & Barclay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 178 of 2013

MR BARCLAY

Applicant

And

MS BARCLAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting and property orders. The husband commenced property proceedings on 2 May 2013.

2. The wife’s response joined parenting issues to the dispute. The wife wants to relocate with the children to Melbourne. The husband wants the children to remain in Darwin. The property issues are also tied up with the relocation dispute.

3. The husband was born [in] 1969 and is aged 43.

4. The wife was born [in] 1967 and is aged 46.

5. The parties started a relationship in November 1999 and were married [in] 2004. They separated on 25 October 2011.

6. They have two children [X] born [in] 2002, aged 11 and [Y] born [in] 2004, aged 9.

7. Both parties are parents of the highest quality. They have shielded the children from adult issues and arranged counselling for them to help the children cope with the separation. It is rare for the court to see parents of this calibre. If it were not for the relocation issue these parties would not have litigated parenting issues.

8. The parties resolved the property aspect of the proceedings after hearing from the expert accountant. The property pool is modest and there are some tax issues which the parties must face. It was clear that the pool was more modest than the husband hoped for.

9. At the end of the hearing the husband wanted time to consider whether or not the parenting issues could be resolved. The parties’ lawyers wrote to Chambers on 18 December 2013 to inform the court that the parties need a judicial decision about the parenting issues.

10. Both parties gave their evidence in a straightforward manner. I accept them both as witnesses of truth.

The husband’s evidence

1. The husband said that he wanted to keep doing what he was doing, that is running the business and remaining in the home. He wanted to keep the house and business which he said the children loved. He only realised this was not possible part way through the hearing.

2. At the hearing the husband had changed his position from what he had told the family report writer.  He told Mr R that he would follow the mother and children to Melbourne but would not be able to for some time due to his financial situation following the property settlement. In his oral evidence he said there were many variables as to whether he would also move to Melbourne if the wife is permitted to relocate with the children. This at least in part was due to him wanting to keep the business. My impression is that if the children move to Melbourne and settle in that the husband will follow although this may not happen for some time. He certainly will not be in a position to relocate until after the home and businesses are sold.

3. I accept that the husband does not want to move to Melbourne. He grew up there. He has family (including his mother and sister) and friends there. He does not like the lifestyle in Melbourne. He loves the lifestyle in Darwin. He lives in the rural area.

4. The husband admitted he had not looked into the schools in Melbourne.

5. The husband said he would do whatever he could to help the children transition if they needed it.  There is evidence that the parties are able to co-operate when issues arise and that they support each other as parents. Even though the husband will be disappointed with this result he will continue to be an excellent father to his children.

The wife’s evidence

1. The wife says she has struggled financially since the parties separated. She has had to move three times. She is working full-time. She would prefer to work school hours so she could be there for the children before and after school as she was before the parties separated.

2. The wife says that as the home and the businesses have to be sold, once this happens, neither she nor the husband will have the flexibility to spend time with the children after school and during school holidays if they remain in Darwin as they will not be working for themselves with flexible hours. Shortly after separation the wife found employment with the [omitted]. They do not have any family to help in Darwin. She says she has to work full time because of the high costs of living in Darwin.

3. The wife has repartnered. Her partner Mr D lives in Melbourne. He has bought a home there. He has a daughter [Z] aged 10, who spends substantial time with him. He also has a son who he does not see.

4. The wife concedes that the children enjoy their lifestyle in Darwin but they have also gotten used to living in the suburbs with her since the parties separated.

5. The wife says the children like her partner Mr D. They have spent time with him but it has only been during holidays.

6. The wife acknowledges that if her application is successful there will be adjustments the children will have to make.

7. Mr D also gave evidence. He and the wife prepared a budget of their anticipated income and expenses.

8. Mr D showed little insight into the challenges of a blended family and the difficulties the children are likely to face in adjusting to the move and being away from their father if he does not also move. I think

   
   

   Mr D is naïve but well-intentioned.

Family Consultant

1. Mr R prepared a family report and was cross-examined.

2. Mr R agreed that there is always uncertainty about the success of a relocation. The children have a rich life in Darwin and are very close to both parents. [X] and [Z] are still getting to know each other. He said in any blended family there will be issues. Some settle in easily others have ongoing issues.

3. [X] is a strong minded intelligent child. Mr R agreed that [X]’s preference is to stay in Darwin. Part of this is based on the husband retaining the home and the business with the animals. This is no longer possible.

4. Mr R said that Darwin being preferential for the children depends on the quality of accommodation, whether or not they have to change schools and whether or not they are able to maintain the same network of friends. If there are significant changes, such as the children no longer living in the rural area or the husband having to work full-time that would change things significantly. Certainly it is now clear that there will be significant changes to the husband’s living and working arrangements as a result of the home and business being sold.

5. [Y] does not understand the implications of the relocation. [X] has a better understanding of it. [X] says she would miss her school and her friends. This is a normal developmental reaction.

6. Mr R said that given the children’s ages and maturity their views are not determinative but cannot be ignored.

7. Mr R agreed that these parties are exceptional in their ability to co-parent and ability to communicate with each other. He did not agree that because of this his concerns about difficulties the children may have in adjusting are allayed because of the quality of their parents. He cautioned that blended families can be hard for children and adults to adjust to. He opined that the husband may feel embittered by the move and that consequently the parents may not be able to cooperate as well as before. He noted that the parents have a better capacity to deal with this than many others.

Observations

1. My impression of both parties is that they are decent hardworking people who deeply love their children. My view of the husband is that he has avoided facing up to the reality of his post-separation financial circumstances. Once he realised it, belatedly during the hearing, the parties settled the financial issues. I accept this was very hard for him.

2. It is heartening to have parents such as these before the Court. Both readily acknowledge the positive strengths of the other as a parent. Both acknowledge the benefits the children receive from each other as parents. Whenever there is a problem they talk to each over the telephone. The only problem both parents identified is that sometimes the children forget things when going to the other parent’s house. I am satisfied that they will continue to work together for the benefit of their children even though the relocation proposal must have put a strain on them both and the husband will be unhappy with my decision.

Legal Principles

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions.

2. The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.

3. In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.

4. There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The concept meaningful relationship has been considered in  number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.

9. Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the child spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.

12. In MRR & GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:

    “Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

13. The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:

    “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

14. Whilst that is the paramount consideration it is not the only consideration.  In AMS & AIF (1999) 24 Fam LR 756 at [144] His Honour Justice Kirby said:

    “…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”[footnotes omitted]

1. The Full Court in Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.

2. The jurisprudence (see B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-343) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.

3. In Taylor & Barker (2007) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:

   “[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:  see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.” 

   Their Honours went on to say:

   “[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.  Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent”

4. In Sayer & Radcliffe & Anor [2012] FamCAFC 209 the Full Court said at paragraphs [53] and [54]:

   “[53]    There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this Court. We refer to the approach outlined in Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray & Watts JJ) where their Honours said:

   APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD

   33.    The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA.  That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   34.    The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

   35.    In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent. 

   36.    The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters.  This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.  Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).   

   37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

   38.    However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   •   first make findings concerning the relevant s 60CC factors;

   •   then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   •   then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

   39.    Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

   [54]  The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently by this Court in Heaton & Heaton [2012] FamCAFC 139 (Coleman, Ainslie-Wallace and Ryan JJ). Their Honours said:

   32.    His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in  s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie.  Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s  failure to adequately evaluate her application to relocate and misapplication of the section. 

   33.    It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children’s best interests.

   34.    His Honour was then obliged to consider the provisions of s 65DAA(1). 

   35.    As the plurality of the High Court said in MRR v GR (2010) 240 CLR 461 at page 466:

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

   36.    Their Honours continued:

   His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made.  His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances…

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

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

   39.    It is unnecessary for us to consider whether, generally, a “slavish” pursuit of the “legislative pathway” is not essential.” 

   (Emphasis added in bold)”

Application of legal principles to the facts of this case

1. The parties agreed to many parenting issues. This is to their credit. They agreed they will have equal shared parental responsibility. I am satisfied that this in the children’s best interests. They also agree that if they live in the same city they will implement a week about arrangement. The children have been living in a week about arrangement since the parties separated a little over two years ago. The parties handed up with consent orders which addressed both scenarios of the relocation being not allowed and it being allowed.

The Primary Considerations  

1. The children enjoy a rich meaningful relationship with both their parents. There are no issues of family violence or abuse.

2. I am satisfied that the children will be able to continue to maintain a meaningful relationship with both parents regardless of whether or not they live in the same city.

Additional Considerations

1. I set out the additional relevant considerations below.  

Section 60CC(3)(a) children’s views

1. [X] would prefer to stay in Darwin. [Y] does not have the maturity to understand what relocation would mean in practical terms. She has an understanding of what the relocation would mean. [X] is 11 years old. [Y] is 9.

2. I accept the evidence of Mr R that the children’s views need to be given weight.

3. [X]’s views favour the husband’s position. [Y]’s views do not favour either position.

Section 60CC(3)(b) nature of children’s relationship with parents and significant other

1. The children enjoy a close and loving relationship with both parents.

2. Their relationship with mother’s partner is in the early stages. I accept they enjoy a positive relationship with him but they have only seen him on limited occasions and in the context of being on holidays. Living with Mr D’s daughter will be a different experience for the children. It would be naive to think that there will not be challenges.

Section 60CC(3)(c)

1. Both parents have taken every opportunity to participate in decision making for the children and to spend time with the children. I am satisfied that they will continue to do so.

Section 60CC(3)(d) likely effect of children’s change in circumstances

Relevant Additional Considerations

1. Now that the husband has accepted the reality of his financial situation he does not have the same ties to Darwin. The home and businesses are to be sold. The husband will have to find alternative accommodation and employment.

2. The costs of living in Darwin are high. I accept the wife’s evidence that she has found it difficult financially since separation. She has moved three times since the parties separated. The children are going to be experiencing a lot of changes in the next few months. The family home and business will be sold. Whilst the husband hopes to remain in the rural area of Darwin and has arrangements in place for the next few months, he may not be able to in the long term. He says he has made arrangements to put a demountable home on a friend’s property. If the husband moves to Melbourne the parties will reinstate the week about arrangement.

3. The advantages to the children of staying in Darwin are not as strong as they would have been if the husband was able to remain living in the home and working flexible hours in the business.

4. The husband has not given much thought to his future employment as until midway through the hearing he was hopeful of retaining the business. It seems unlikely that at least in the short term he will be able to find employment offering him the flexibility to be home when the children are that he enjoys currently.

5. If the wife is allowed to move to Melbourne with the children she will have the support of extended family and her partner.

6. Both parents have extended family in Melbourne. Neither has extended family in Darwin.

7. The wife says because she will be living with Mr D and having the benefit of his home she will be able to work from home so she will be able to be home for the children after school.

8. The wife and her partner prepared a budget of their anticipated expenses. The husband argued that this is optimistic especially given the fact that the sum the wife will receive as a result of the property orders will be smaller than anticipated. Whilst this may indeed be the case the fact is both parties will only receive a modest property settlement.

9. It is inevitable in these types of cases that one parent will be disappointed by the result. Mr R raised concern that if the relocation is allowed the husband may feel embittered and that may negatively impact on the cooperative parenting relationship the parties currently enjoy. Having observed both parties I do not share this concern. I am confident that the parties will continue to work together to prioritise their children’s needs.

10. Even if the children were to remain in Darwin with their parents they would experience upheaval with the home and business being sold and the wife would continue to be under financial pressure and away from her partner.

11. In my view in all at the circumstances it is in the children’s best interests to allow the wife to relocate to Melbourne. The wife has the support of her partner and extended family in Melbourne. Her financial pressure will be somewhat alleviated by the move. The wife will encourage and facilitate the husband’s relationship with the children.

12. I find that it is more likely than not that the husband will also relocate to Melbourne although that may not be for some time.

13. For these reasons I make the orders which appear at the beginning of this judgment.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  22 January 2014