Bearer and Bearer

FAMILY COURT OF AUSTRALIA

BEARER & BEARER

[2007] FamCA 678

FAMILY LAW - CHILDREN - With whom a child shall live - Relocation - Step-child - Psychological parent

APPLICANT:

MRS BEARER

RESPONDENT:

MR BEARER

FILE NUMBER:

NCF

2183

2000

DATE DELIVERED:

11 July 2007

PLACE DELIVERED:

Newcastle

JUDGMENT OF:

Justice Mullane

HEARING DATE:

11 & 12 December 2006

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr D Coyle of Family Law Firm, Solicitors

SOLICITOR FOR THE RESPONDENT:

Mr W Hill of Messrs Hills, Solicitors

Orders

Joinder of the natural father of the child C born in March 1993 as a party to the proceedings is dispensed with as his name and location are not known.

The mother’s application for orders to enable her to change the place of residence of C and M born in August 1996 is refused and dismissed.

By consent C is to have contact with the father identical to that defined for M in the Orders of the D Local Court made in 2001.

The husband has leave to request the Registry Manager by letter to list his costs application for hearing in a Judicial Duty List before Justice Mullane on 7 days notice and in default of any such request being received by the Registry manager by 31 January 2007 the costs application is by this Order dismissed.

Otherwise any outstanding applications of the parties are dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as BEARER & BEARER.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 2183 of 2000

MRS BEARER

Applicant

And

MR BEARER

Respondent

REASONS FOR JUDGMENT

introduction

These proceedings concern the care, welfare and development of the parties’ daughter M, aged 10, and the mother’s daughter from a previous relationship, C, aged 13.
As the natural father of C could not be identified and his whereabouts were unknown, an order dispensing with the requirements of Rule 6.02 of the Family Law Rules was made.
The parties separated in about 1999. They were divorced in 2000. The mother has formed a romantic relationship and is now living with the man in a de facto marriage. The parties cohabited for about 5 years before the separation. C was a member of the household during that time. Both the girls have had regular contact with the father since the separation.
Orders were made by consent in the Local Court at Maitland in April 2001 as follows:
6. THAT the child of the marriage of the parties namely [M] born [in] August 1996 live with the Wife.
7.        THAT the said child have contact with the Husband as follows:
7.1Each alternate weekend commencing at 5.00pm on the Friday and concluding at 7.30pm on the immediately following Sunday save where such contact occurs on a long weekend including a Monday whereupon the period conclude at 5.00pm on the Monday;
7.2      Each Tuesday from 4.00pm to 7.00pm;
7.3      From 3.00pm Christmas Day to 6.00pm Boxing Day each year;
7.4For two continuous weeks during the NSW gazetted Christmas school holiday period, such contact to occur in January and be as agreed between the parties;
7.5For one half of each of the NSW gazetted school holidays at such times as agreed and failing agreement to be the first half of each school holidays commencing at 9.00am on the first day of the school holiday period to 6.00pm on the day that marks the midpoint;
7.6On … August and … March for up to 3 hours at such times as agreed and failing agreement from 4.00pm to 7.00pm;
7.7      From 10.00am to 5.00pm on Father's Day;
7.8By telephone at reasonable times for such to be between 5.30pm and before 7.00pm; and
7.9Such further contact or variation to the above as agreed between the parties from time to time.
8.        THAT the aforementioned contact be subject to the following:
8.1Unless otherwise agreed between the parties the Husband be responsible for the collection of and return of the child at the commencement of and conclusion of each period of contact from and to the home of the Wife;
8.2the abovementioned weekend contact be suspended from 10.00am Mother's Day;
8.3The abovementioned weekend contact program be and is hereby suspended during school holidays unless otherwise agreed between the parties; and
8.4The said child is to be accompanied on all contact periods with her half sister [C] (who is not a child of the marriage of the parties) born [in] March 1993 provided [C] wishes to go on contact.
9 THAT each party provide such consents and authorities to allow the provision to the other part of any medical report or reports in relation to the child as required by the medical practitioner or practitioners.
10 THAT each part provide such requisite consents and/or authorities required by the school of the child to enable each party to receive report or reports, school photographs or any other notice or notices relating to the child.
11 THAT each party have the day to day care, welfare and development of the said child during such period or periods the said child if with that party.
AND IT IS NOTED:
12THAT the Husband and Wife acknowledge and agree the Husband is the psychological Father of the child [C] and the said child [C] is the sister of the child [M].
The mother wants to move to Queensland with her partner and the children. She seeks orders to facilitate this. She proposes the following orders:
1         The child [M] born [in] August 1996 ("[M]") shall live with her mother […] (the "mother").
2         The mother and […] (the "father"), hereafter called the "parents" shall, unless otherwise from time to time expressly agreed by them, cause [M] to spend time with her father at the times and subject to and in accordance with the orders, arrangements and conditions set forth in this order.
3         For the purposes of this order, school holidays comprise the period commencing on the last day of the term then ending at the school that the child shall be attending and ending on the Sunday preceding the start of the next school term.
4         During each Christmas school holiday period commencing the first such period after the date of this order, [M] shall spend time with her father
(a)in odd-numbered years, from 9:00 am on the first Saturday of the holiday period until 5:00 pm on the day that is the mid-point of that period; and
(b)in even-numbered years, from the 9:00 am on day that is the mid-point of the holiday period until 5:00 pm on the last Saturday of that period.
5         During each autumn, winter and spring school holiday period, [M] shall spend the time with her father between 9:00 am on the first Sunday of the holiday period and 5:00 pm on the second Wednesday of that period.
6         The following shall, unless the parties otherwise from time to time agree, apply to the facilitation and implementation of this order
(a)      [M] shall travel by air as an unaccompanied minor;
(b)handover shall take place, at the airport nearest to the mother's residence (the "Airport");
(c)the father must give to the mother not less than 14 days written or e-mailed notice of the travel arrangements that he has made for [M]
(d)the parents shall liaise with each other as necessary to ensure that all travel arrangements are organised and implemented smoothly.
7.        In the case of travel pursuant to orders 4 and 5, the father shall pay for [M’s] air tickets at the start of the child's time with her father and the mother shall pay directly for or reimburse the father for the cost of [M’s] return air travel at the end of her time with her father, as the circumstances from time to time require.
8.        If [M] shall travel for the purpose of spending time with her father otherwise than pursuant to orders 4 and 5, the father shall pay for her return air tickets.
9.        During school term and in particular on or about Fathers' Day and [M’s] birthday each year, but not on the Mothers' Day weekend, [M] shall, at the father's election and unless the parties otherwise from time to time agree, spend the weekend contact with her father in the area where the mother is then living upon and subject to the following
(a)this may at the father's election occur twice each school term between Friday afternoon and Sunday evening;
(b)the father must give to the mother at least 14 days written or receiptacknowledged E-mailed notice of his proposals and of the dates and times of his intended arrival and departure to and from the Airport;
(c)the time that [M] spends with her father shall commence and conclude and handover shall take place at the Airport at the arrival and departure times stipulated by the father in the notice given pursuant to order 9(b).
10       The mother must cause the following arrangements to be made both for [M] and her half-sister [C] born […].03.1993 (“[C]”):
(a)she will use her best endeavour to ensure that [C] accompanies [M] on all occasions when [M] is spending time with her father pursuant to this order;
(b)she will put both [M] and [C] (the “children”) on a flight to [W] Airport on the Friday of each fourth week during school term in order that they may spend the weekend with the father, who must collect them from [W] Airport and put them back on a return flight on the Sunday of that weekend;
(c)she must book and pay for all aircraft travel for the children and she must provide the father with their travel itineraries at least seven days before the flights are to occur as necessary to implement this order 10; and
(d)she must meet the children at the end of their weekends with the father pursuant to this order 10.
11. The parent with whom [M] is from time to time staying shall permit, encourage and facilitate telephone contact between [M] and the other parent, such contact to be initiated by that other parent and to occur, if the parents cannot otherwise agree, between 7:00 pm and 8:00 pm on Wednesdays and Saturdays.
12.The parent with whom [M] shall from time to time be staying overnight shall have sole parental responsibility for her day-to-day care, welfare and development and for all costs incurred for her benefit during that time and he or she shall keep the other parent informed of all significant events that occur during the child’s time with that parent regarding her health and welfare.
13.Subject to order 12. the parents shall have joint parental responsibility for [M].
14The parents shall confer with each other as necessary and they shall not make decisions on major health and welfare issues concerning [M] unless such consultation has taken place.
15The parents shall keep each other informed from time to time of their respective residential addresses and of any E-mail addresses and land and mobile telephone numbers they respectively have.
16Both parents shall each be entitled to receive and each shall provide to the other such information and shall do all things and provide all consents and/or authorities that shall be reasonably requested of them respectively to allow them both to have access to and to consult
(a)all schools, persons, medical and allied health practitioners, hospitals and other health and welfare agencies and professionals that are from time to time materially involved in [M’s] education, care and welfare; and
(b)all reports, notices and written or E-mail material available to them respectively concerning the child's health and welfare and her school, sporting, social, cultural and similar activities, so that they shall both be kept informed of such matters and shall have the opportunity to be present at and involved in all such activities and events.
The father opposes the mother’s application and seeks an order dismissing it.
He wants the existing orders to continue.

BACKGROUND

The parties commenced cohabitation in March 1994 in the D district. C was about 12 months of age at the time.
M was born in August 1996.
From February 1997 the parties and the girls resided with the husband’s parents in their home at U near D for about 10 months. During that period the paternal grandmother cared for the girls 1 day per week.
The parties married in September 1997.
When the parties separated in 1999, the girls continued residing with the mother, but had regular and frequent contact with the father.
On 27 April 2001 Orders were made in the Local Court at D as set out in the introduction.
Since the Orders of 27 April 2001 the girls have both generally enjoyed contact with the father in accordance with those Orders as well as on other occasions, such as when the father at times has minded the children so that the mother could go on a holiday, when the mother has agreed to additional contact to enable the girls to attend family functions with members of the paternal family, and when the father has attended sporting and school events for the children at times outside contact periods in the 2001 Orders.
The parties were divorced in August 2001.
The mother formed a romantic relationship after separation with another man and they cohabited until 2003. In about mid-2004 the mother formed a romantic relationship with her present partner. At the time he was living at H (near D) with his father and had been there since he came to the area from Queensland in about August 2001 or earlier. At the time the mother was about 33 and her now partner was about 24 and working full time as a retailer. He moved in mid-2005 from living in his father’s to other premises in the area.
The mother’s solicitor wrote to the father on 11 February 2005. The letter recited that the parties had discussed the mother’s proposal that she move to G near a south coastal town in Queensland with the girls and advised that if the father did not agree to the existing parenting orders being amended to permit this, the mother would make an application t the Court. The letter invited the father to negotiate with the solicitors on a “without prejudice” basis.
The letter stated:
It is not practicable for us to set out all of the circumstances of which our client believes are relevant to her proposed move. These matters can of course be discussed in the course of negotiations. However, our client highlights the following matters as some of the more significant issues arising:
l. As you know, [the mother] has formed an affectionate relationship with [her present partner], who you have met. [The mother] believes [her partner] to be a man of good character. He comes from [G] in Queensland and intends to relocate to that place.
2. [The mother] hopes that she will be able to join [her partner] in [G] She believes that the area is a far superior place in which to raise young girls then [U], where our client presently lives.
3. [The mother’s partner] has an extended family in [G], a family with whom our client has developed a very good relationship and they would both have the practical and other support of [her partner’s] extended family in that area.
4. In particular, [the partner’s] mother has a large home in [G] where [he] intends to relocate. Our client hopes that she can join [her partner] in [G], but she would of course only do so if it is possible for her to take her 2 girls with her.
5. [The mother] has been retrenched from her employment and is having difficulty meeting the mortgage payments on her home. She has little choice but to relocate in any event and the obvious solution to this is to join [her partner] in [G]. We hasten to add, our client will only do this with your consent or with the benefit of a court order. She thinks that maintaining property and adequate levels of contact between both girls and yourself is a matter of real importance in the best interest of the children.
These are some of the matters concerning our client. [The mother’s partner] has employment available to him when he arrives in [G] and [the mother] would also be able to obtain part time work there which would allow her to be a full time mother to her children while they were at school. Such employment is not available to her in the [northern New South Wales] area.
Should our client be able to relocate to [G], she proposes that [M], and hopefully, [C], would see you for more extensive periods during school holidays, any time when you care to be in the South Queensland coastal area and at least twice per year when [the mother] would propose to visit the [Northern New South Wales] area.
Our client would also ensure that telephone, internet and similar contact is freely available.
On 25 February 2005 the mother and her now partner travelled to Bali for a holiday of 2 or 3 weeks. During the period they were away, the girls were cared for by the father.
On 25 February 2005 the father replied to the solicitor’s letter. He said he had met with the mother and discussed the matter about her relocating the children to Queensland and he had informed her that he would not agree to allow the existing parenting orders to be changed to allow that.
He also stated:
In reply to the highlighted significant matters I reply as follows:
1. The intentions of [the mother’s partner] to relocate to Queensland should have no bearing on existing child orders as the relationship with [the mother] is only a few months old. As for his character I will only say that what [the mother] believes to be "of good character" may differ somewhat to the beliefs of a reasonable man.
2. Please forward the facts that would show [G] to be "far superior" to [U] with respect to raising young girls. The fact that all the girls schooling and friendship developments so far have taken place in the [U] area already tips the balance towards [U].
3. Surely we are not going to compare the family support base of a new person in [the mother’s] life, (a family that [the mother] may have met twice) to the family support base that already exists for the girls on both parents sides in the [Northern New South Wales area]. A support base that has always been there to support the girls whenever needed.
4. As above, with the addition of that the girls to my knowledge have never met [the mother’s partner’s] mother or vise versa yet there are plans to relocate them to live in her house.
5. [The mother] has always moved from job to job and never held any respect for the values of earning an income. She has also turned employment opportunities down recently. If it is so difficult for her to meet mortgage payments please explain the logic of a 12 day Bali holiday, started on Friday 25th February. With reference to adequate contact, I currently do not have the girls' home phone number and was made feel uncomfortable by [the mother’s partner] for going to the front door of [the mother’s] home to collect my daughter. I can only see contact becoming harder when living in his mother's house.
[The mother’s partner’s] employment is of no relevance and as mentioned before [the mother] could find work in the [Northern New South Wales area] if she cared to look. With a population in [G] of 4871 & unemployment rate of 11.2% (compared to [D’s] rate of 6.5%), ability to find work would be almost twice as hard in [G].
The proposition of greater access during school holidays would not allow me to see the girls any more than I currently do. With school holidays being for 12 weeks a year, in which child care facilities are regularly closed and I like most other employed people only allowed four weeks annual leave a year, there would seem to be a shortfall of 8 weeks.
On 15 August 2005 the mother had a conversation with the father in which she asked if he would be prepared to discuss with her her proposals to move the girls to Queensland. The father said he was still opposed to the girls moving to Queensland and did not wish to have any change to the arrangements for them to have contact with him. The mother later that day gave instructions to her solicitor and he wrote to the father the same day. The letter asked the father to reconsider his opposition to the proposal of the mother. It indicated that the mother would commence proceedings, but she still hoped that they would be able to reach an agreement and she was still willing to have further discussions.

The letter stated:
Your natural desire to see as much of your daughter as possible is understood, as are the reasons why you would prefer that our client not relocate.
On the other hand, we trust that it will be equally understandable to you that [the mother] would like to get on with her life and that she does not wish to remain a prisoner of the [Northern New South Wales area] for the sake of meeting your convenience and your desires, understandable though they may be.
The mother commenced these proceedings by her application filed on 7 September 2005 in the Federal Magistrates Court. The orders sought in that application are identical to those the mother sought at the hearing, with the exception of paragraph 10. In the original application it read:
10If the mother shall have occasion to travel with [M] to the area where the father shall be living she shall give to the father notice of such proposed travel and of her proposed itinerary and she shall permit the father to spend a reasonable time with [M] in the course of such travels.
The parties attended confidential counselling on 5 October 2005 but were unable to reach agreement. The father filed his response on 7 October 2005 seeking that the mother’s application be refused and dismissed. He made it clear throughout the hearing that he wished the existing orders to continue, the effect of which would be to continue the contact that both girls had been having with him since 2001.
On 12 October 2005 a Federal Magistrate set the matter down for a 2 day hearing commencing 14 August 2006 and ordered the preparation of a Welfare Report. Mr T was appointed to prepare the report. Mr T graduated with a Bachelor of Arts Degree from a NSW University in 1973 and also graduated from an interstate University in 1980 with a Diploma of Applied Psychology. He has been a member of the Australian Psychological Society since 1979 and a Registered Psychologist in NSW since 1991.
His vocational experience includes working from 1971 to 1975 as a Guidance Officer for adolescents with the Vocational Guidance Service. From 1975 to 1980 he was psychological practice in charge of a unit for students and staff of two TAFE colleges in Adelaide.
Since 1984 he has been a Regulation 8 Report Writer for the Family Court of Australia. From 1985 to 1991 he worked as a psychologist with the Department of Community Services (DoCS) with a responsibility for the assessment and treatment of children alleged or found to have suffered physical, sexual or emotional abuse. This included assessments of juveniles on criminal charges. Since 1992 he has been in private practice as a psychologist, including work with Juvenile Justice for assessment and treatment. He has also continued to provide reports for the Family Court of Australia as a Regulation 8 Report Writer and also as a Single Expert. He has also been involved in the preparation of Victim Impact Statements commissioned by the Office of Public Prosecutions and counselling for victims of crime through the Victims of Crime Bureau.
In private practice he also provides psychological treatment for adults and children who have suffered abuse or other traumatic experiences. He also is an Authorised Clinician of the Children’s Court Clinic providing reports on the placement of children who are the subject of proceedings in the Children’s Court.
In January or February 2006 the mother fell pregnant to her now partner.
Mr T carried out the interviews and observations for the report on 25 June 2006. Prior to doing that he read all the available affidavits and the orders of 11 April 2001 and 12 October 2005.
On 27 June 2006, 2 days after the interviews for the Welfare Report, the mother swore an up-dating affidavit and she stated in that affidavit that she had fallen pregnant to her now partner, that he spent most of his time on weekends and overnight at her place, and that they would be living together before the matter came to hearing. She said that they were “formally engaged to marry and we intend to do so later this year or early next year; we hope to be married in the [G] area”.
She also said:
5I will only relocate to Queensland if I have permission to take both of my children there with me. It is therefore not practicable for [my partner] and I to finalise our wedding arrangements until the outcome of these proceedings is known.
The material in that affidavit appears to suggest that her now partner would be moving to Queensland, even if the Court declined to allow the mother move the children there, and the mother and the children remained in the D District.
But the affidavit sworn by her now partner on the same date, did not disclose any such matter. He said, “[The mother] and I plan to marry, but we have not yet set a date. We are waiting for the outcome of these proceedings before announcing a date for our wedding.”
He said, “I set forth in this affidavit [the mother’s] and my plans for the future, in the hope that this Court might permit us to relocate to South East Queensland”.
After the interviews for the Welfare Report the mother filed an Amended Application the mother filed an Amended Application on 12 July 2006. The amended was to substitute a different clause 10 of the orders sought as follows:
10If the mother shall have occasion to travel with [M] to the area where the father shall be living –
(a)she shall give to the father at least 14 days written or receipt-acknowledged E-mailed notice of such proposed travel and of her proposed itinerary; and
(b)she shall at the father’s request and upon not less than 7 days written or receipt-acknowledged E-mailed notice of that request permit [M] to spend one-half of her time in that area with the father.
Mr T’s report was released on 8 August 2006.
The hearing was to commence on 14 August 2006 in the Federal Magistrates Court, but the Federal Magistrate ordered that day that the proceedings be transferred to the Family Court. The Federal Magistrate also ordered that the mother pay $1,720 towards the father’s costs of the adjournment.
On 28 September 2006 E, the child of the mother and her partner was born. The mother’s partner moved in with the mother and the children at the home at U at about the same time and since then the mother, her partner and the 3 children have all continued to reside in the home.
The week before the hearing, the mother’s partner resigned his employment with a retailer in the D district, where he had worked for 5 years since he came to NSW.
The hearing proceeded on 11 and 12 December 2006. At the end of the mother’s case on 12 December, the mother further amended the orders she was seeking by substituting a third version of Order 10, being the version referred to in the introduction as part of the orders sought by the mother.
The final orders set out earlier were made on 22 December 2006. These are the reasons.

M

M was 10 years and 4 months of age at the time of the hearing. Mr T observed her in June and described her as, “reserved in manner, but well aware of the reason for the assessment”, and, “friendly and cooperative”.
It appears that M attends school in the U area and Mr T said that “she is doing well at school and completing her development very well”.
M at the time of the hearing was in her third year at playing weekend netball. Both girls play netball. Both girls are computer literate and have e-mail addresses but as yet they have not exchanged e-mails with the father. They both have mobile phones and the father said mostly when he phones them, his calls are unanswered. Both girls are interested in various pop singers and at the father’s place they have a collection of such CD’s that they have left there. They also have a “Singing Star Play Station” and karaoke microphones. They sing along with this equipment. The father said that generally the girls prefer to have friends with them rather than just be in each other’s company.
He said that M “fits in” with C’s friends, despite the age difference and “fits in with everyone”. The father did not acknowledge that C has any behaviour problems or trouble with acting out at school, but he said that she “tends to know all, know more”. He said, however, that he is not able to compare her in that regard with other 13 year olds. He said each of the girls is bossy towards the other at times if the other does something that is “not right”. He said, “They try to tell each other what they should/should not do”.
The mother’s evidence that at least since the 2001 Orders, the girls have been in the habit of spending at least 75 overnight stays per annum with the father as well as each Tuesday evening during school terms from 5pm to 7pm.
When the mother swore her affidavit in August 2005, she testified that M had said to her regarding the proposed move to Queensland, “I want to go, as long as I can still see Dad on my holidays. It wouldn’t be fair if we can’t go.” In the mother’s affidavit sworn in June 2006, she testified that M had told her regarding the proposed move, “It would be great fun and we would have things to do all the time, not like here”, and, “If I can see Dad in school holidays and the other times, why won’t he let us go?”
The Court must be cautious about placing much weight on such statements to a parent by a child in the midst of such a conflict between her parents as to where she should live. It is clear that M is experiencing a conflict of loyalties because of the parents’ different proposals and a need to show each parent loyalty .
Mr T reported that M told him she knew the assessment was to determine whether she and C should move to Queensland with their mother, she then elected not to say what she preferred. He reported:
59However, after describing the activities she engaged with both parents, [M] did assert that the planned contact for her to her father, if she was in Queensland, would not be as good as seeing him each week.
60She did express a strong wish to see her parents together more often, although she was aware that they were better apart than together arguing.
M told Mr T that she was not frightened by the disagreements between her parents because they did not persist or reveal any threatening behaviour between them. She said the parents cooperated when either of the girls had a birthday and this meant they only had 1 party with friends attending, but may have another family celebration at the other parents’ home without friends. M said she enjoyed this level of cooperation between her parents.
M emphasised to Mr T that for her the best outcome from the proceedings was for her parents to remain friendly. He said, “[M] endeavoured to reserve her answers so as to ensure this outcome to the best of her ability.”
Mr T found from his observations of M that she had “a very strong attachment to both parents”, and she wished to spend as much time as possible with both of them. He also found that M has “a very strong and affectionate relationship with [C]”.
When he swore his affidavit in May 2006 the father testified that over the past year he observed that both girls had become more demonstrably affectionate to him.
In cross-examination in December the mother said that twice M had wanted to leave home and had contacted her father but had then not left home. She said that the father goes to watch the girls at netball and M is now in her third year of that. He has also been to the school to school functions for the girls and attended their netball presentation night in October 2005. She conceded that on 30 September 2006 when C had her school formal, M was playing indoor netball at U with friends from school. The mother was playing in her ladies team. She stayed after the game and M was given a lift to the formal. She went home with the father after the formal and stayed with him.
The father’s evidence is that the girls both have “extremely close bonds” with the paternal grandparents. This is common ground in the proceedings. The paternal grandparents have had a lot to do with the girls throughout their lives. They have had many sleep-overs at the home of the paternal grandparents, particularly during school holiday periods. The paternal grandparents in 2005 and 2006 often attended to watch the girls play netball.
In 2005 the paternal grandmother went to L to watch C participate in a netball carnival. The paternal grandparents, particularly the paternal grandmother, participated in many significant events for the children, such as school sports days, confirmations, Christmas concerts, school concerts etc.
The paternal grandparents now reside at B, and it appears that the children’s contact with them is less frequent now than it was when they resided in the U district. However, the evidence is that during school terms, the girls see the paternal grandparents on about 3 of every 4 weekend contact periods. On those occasions they usually go with other members of the paternal family to the home of the paternal grandparents for a “Sunday baked dinner”. On those occasions the paternal uncle, his wife and his 2 young sons attend and also the paternal aunt and her daughter, who is about 2. The children play together on such occasions.
When the mother was hospitalised for M’s birth, C stayed with the paternal grandparents. In recent times when the children have had contact with their father in school holidays, the 3 of them have often stayed for a week at a time with the paternal grandparents at their home at B. In 2003 the paternal grandparents went with the father and the girls to the Snowy Mountains for a skiing holiday.
The mother’s partner’s evidence is that he gets along well with the girls and he believes that they like him and enjoy having him around. But that affidavit was sworn before he became a resident in the girls’ household. When the mother swore her affidavit in November, about 2 months after he moved in with them, it did not address the issue of the girls’ relationship with him. At the time of the hearing the evidence did not establish that the girls’ relationship with the mother’s partner had become a significant one in their lives.
The mother seems to suggest that the children have a good relationship with her new partner’s mother and step-father, who reside at G in Queensland. They have met those people only in the last couple of years and have seen them very infrequently. Their relationships are not significant particularly compared with the girls’ relationships with the father’s parents, for example, which has been extensive over a period of 12 years and 9 months for C and more than 10 years for M. It is also so in relation to their relationships with the maternal grandparents, and aunts, uncles and cousins of the children in the northern New South Wales area and friends the children have from school, sport and other activities.

C

C was 13 at the time of the hearing and was to turn 14 in March 2007. She was diagnosed as suffering from ADHD at about the time when she turned 6 and since then she has taken medication to address that. In his cross-examination the father said that he believes that C has a self-esteem problem and that she worries about whether she is carrying too much weight. But he said he thinks that she is confident amongst friends. He said that C has some good friends at school. He said that like M, C also likes pop singers and enjoys Karaoke activities.
When he was asked whether C had any behaviour problems or problems with “acting out” at school, he said, “She tends to know all, know more”. But he said he could not really compare her with other 13 year olds. In his cross-examination the father was asked whether C is bossy with M. He replied, “Both. If one does something not right. They try to tell each other what they should/should not do.”
The mother’s evidence in her affidavit sworn 16 August 2005 was that the mother could not remember the name of C’s natural father, his name did not appear on the Birth Certificate, and the mother did not inform him of the birth. C has not met him.
Mr T described C as “pleasant, friendly and cooperative”. The father’s evidence is that C has a short attention span, but enjoys reading and reads books other than school books. The father said that C experiences some difficulty with her learning at school. Some of her grades are not good. He said they try to work on that and he has spoken to the school counsellor about it.
In her affidavit sworn in August 2003 the mother testified that in relation to the proposed move to Queensland, C has asked her, “Would we still be able to see Dad?” In her affidavit sworn in June 2006 the mother testified:
9[C] is generally a well behaved child and is good-natured. However, at the age of 13 she has become outspoken and she sometimes tries to play her parents off against each other, for example at times if she does not want to do what I ask her to do.
10.On some such occasions she has telephoned [the father] and has said to him, "I want to come and live with you".
11.On other occasions, when she has been with [the father], she has telephoned me saying such things as, “I want to come home because [M’s] never gets in trouble and I get the blame for everything".
12.On such occasions I have recognised [C's] behaviour as attempts to manipulate us both and I have called her bluff. For example, when she has said that she wants to go to her father, I have said to her such things as, "Your Dad's not going to put up with that either. You'll still have to do your chores and your study".
13.I have discussed such behaviour with [the father], when he has said to me (quite correctly) words to the effect, "She can't come and live with me just because she's not getting her own way".
She also testified that C had said to her:
Dad’s got no right to stop us from going, because you’re still letting me see him in school holidays.
The mother’s partner gave evidence that C has said that she does not want to go to Queensland and he also conceded that she has expressed the opinion that if she is in Queensland it will not be as good as seeing the father each week.
The father’s evidence is that in April 2006 while he was watching television with C she told him that she did not want to go to Queensland and “I don’t want to leave you and my friends”. The same month she told the paternal grandmother, “I have decided I don’t want to go to Queensland”. Both comments occurred in a context where the topic had not been raised with C. However, one must be cautious is placing much weight on such expressed wishes in the context where C is aware that her father is opposed to her going to Queensland. Her statements might be motivated by a need perceived by C to demonstrate to the father, and persons she perceives to be aligned with him, loyalty to him and his views.
However, Mr T reported from his interviews and observations in June 2006:
68. [C] was well aware of the reason for the assessment and when asked if she knew the reason continued her answer with the statement that "don't want to go (to Queensland), will miss my family and friends". "Miss my Dad's side of the family" (i.e. the [Bearer] extended family) [C] explained that she liked her extended family including all her cousins.
69. [C] then went on to say "Mum would be unhappy with (me) saying that didn't want to go to Queensland".
C also told Mr T that the support the father gives her for her school work has been of real benefit to her recently and this is another reason why she wishes the current arrangements to continue.
The father’s evidence is that “[C] has played us (her parents) off”, but “we have both told her she can’t”. He said that “[C] has shown increasingly she wants a say.”
On the evidence it appears that in all probability C’s primary attachment is to her mother and that that attachment is a strong and positive one.

The mother’s evidence is that C knows the father as “Dad” and calls him “Dad”. She was told at 8 years of age that he is not her natural father, but has a strong bond with him. On the evidence it is clear that he is her psychological father.
The father’s evidence in his affidavit sworn in May 2006 was that in the preceding 12 months he observed that C had become more demonstratively affectionate. He said, “[C] now has a tendency to sit very close to me and would regularly throughout the contact weekend come up and hug me.”
Mr T reported from his interview with the mother that she was “acknowledging that she had [the father’s name] before she met (the father) but he had filled the role of father when they were together and this had continued since the separation.”
Mr T reported in the Welfare Report:
72. When observed with [her father], [C] demonstrated that she had a very strong attachment to [the father] and that she depended a great deal upon this relationship.
73. [C] showed that she had been informed of her biological father's existence in a very appropriate manner since it had not significantly changed her relationship with her parents, [the mother] and [the father].
74. [C] has asked in the past to be able to live with [the father], but he has always replied in the past that out of respect for both girls he could only have one live with him, if both were to live with him.
Consistent with the other evidence, Mr T found that C has a very strong affection for M and wants to continue living with her.
Mr T also reported:
70. [C] went on to describe incidents in her relationship with [the mother’s partner] and that there had been unpleasant incidents for some time, but that her mother's intervention had seen a ceasing of these abusive incidents. However, she was also concerned that [the mother’s partner] had directed abusive words and gestures toward her father ([Mr Bearer]).

THE APPLICANT MOTHER AND HER PROPOSALS

The mother testified in cross-examination that she proposes to sell her home in New South Wales and they will stay with her partner’s mother and step-father “a little time” “probably the first week or so” in Queensland until they obtain suitable accommodation. In her affidavit she said that “good quality homes” can be rented in G for between $220 and $250 per week. She also said that she plans that using the net proceeds of sale of her home after discharge of the mortgage, she and her partner would purchase a home in G.
In her affidavit the mother proposed that C attend P High School and M attend E State School or C Primary School. She attached printouts from the web sites of the schools. She has had correspondence with E State School and P High School and has ascertained that there are places available for the girls at the schools.
There is very limited evidence as to activities the girls share with the mother or the mother and her partner. There is evidence that the mother and her partner take the girls with them to a nearby oval when the mother’s partner walks his dog and at times they take the girls out for dinner and to visit friends. The mother’s partner is a keen surfer and the mother enjoys swimming. In the mother’s household in summer the members of the household usually go to the beach on weekends.
The mother’s evidence in her affidavit is that because of her obligations for the care of baby E, she does not propose to undertake paid work in G for at least 6 months. The mother’s income at the time of the hearing comprised Family Allowance and child support for M. She has not received any child support for C.
At the time of the hearing the mother’s partner was 26 years of age. He is a retailer by trade and comes from the G area. His mother and step-father reside there. He lived in NSW until he was 13, then resided in Queensland until he was 22 and has since then resided in NSW. He said in his affidavit, “Queensland is home to me and that is where I want to settle down with my family.” At the time of the hearing he had been to Queensland on 4 occasions for visits in the previous 2 years.
At the time of the hearing the mother’ partner had recently resigned his employment as a retailer, which he had held for 4 years. He was unemployed. He proposes to seek employment in the G area if they move there. There is no evidence as to the availability of work for him.
In her affidavit sworn 16 August 2005 the mother said that she was in love with her now partner and that she was sure he was in love with her. She said she wanted to live with him. She said that she would only move to G if she could take the girls with her and having regard to the wishes of her now partner, they had not established a joint residence in the Northern NSW area. It appears that his intention at that time was to move to Queensland regardless of whether the mother went with him. For her part, the mother said she would abandon plans to live with him if she could not take the girls to Queensland.
When the mother swore her affidavit of 27 June 2006 she was pregnant and the baby was expected in November. Although they were not living in the same home, she said that her now partner, “spends most of his free times on weekends and overnight at my place; we have meals together, sleep together and socialise together.” She said they would be living together “before this matter comes on for hearing; we are informally engaged to marry and we intend to do so later this year or early next year; we hope to be married in the [G] area”. The mother also swore that she would only relocate to Queensland if she had permission to take the girls with her and, “It is therefore not practicable for (her now partner) to finalise our wedding arrangements until the outcome of these proceedings is known”. However, at the time of the hearing the mother’s partner had changed his mind and had determined, because of the birth of his daughter E, that if the mother and the children could not come to Queensland, he would not move there. It is somewhat ironic that the mother’s proposal involves the girls moving to Queensland and in that sense separating from the father, while the mother’s partner’s change of heart to the position that he will not move to Queensland if the mother and the children cannot come with him, is motivated at least in part by his unwillingness to move to Queensland without his child.
The mother and her partner have had a romantic relationship since mid-2004 and prior to September 2006 the partner came often to her home for meals and often stayed overnight. His evidence was that he and the mother are engaged and that they plan to marry. He had commenced residing with her and they had been sharing his income in that arrangement. He had been living with her for a little over 2 months. He testified in his affidavit that they were waiting for the outcome of the proceedings before announcing the date of their wedding.
He testified in oral evidence that he has made a commitment to the mother that if her application is refused, he would not go to Queensland, but would stay living with her. He said, “I love her”. He said he would stay because of “our family” – the mother and the 3 girls.
His father resides in the Northern New South Wales area as does his sister. He is estranged from his sister and has not spoken to her for 12 months. She is his only sibling. His evidence is that while the mother and he were away overseas recently his cousin minded M and C at the mother’s home. It appears that his cousin also resides in the same area.
When the mother’s partner was asked in cross-examination how he gets along with the father generally, he said, “I just never really associate with him”. There is evidence of him being verbally abusive of the father on occasions when they have met. Although the partner denied knowledge of ever being offensive to the father in word or gesture when he was interviewed by Mr T, he and the mother conceded some such behaviour in cross-examination. The Court accepts the father’s evidence of interactions between the mother’s partner and the father.
In particular in February 2005 when the father was returning M and C to the mother after the mother had been to Bali with her partner, the father was conversing with the mother on the front lawn of her home regarding C’s medication for ADHD. The partner, who was inside the home shouted out to the father, “Good on you. You fucking hero.” The girls were within hearing distance.
In October 2005 when the father attended the girls’ netball presentation, as he entered the auditorium, the mother’s partner looked at him and started clapping and jeering. He said to the father, “The big fucking hero has just turned up”, and later said to him, “Come on you big wanker. Come outside.” The girls were frightened by this. M began crying. The father re-assured the girls and left.
There was evidence of occasions when he has played “too rough” with C and she has been hurt. Both the girls informed Mr T that the partner has struck C in a threatening manner. Mr T reported that the mother conceded to him that she had become aware that her partner was “too severe” in his dealings with the girls and she spoke to him about the responses she expected him to make to the girls behaviour and has been pleased with his improvement.
Mr T found that the mother’s partner attempted to comply with the requirements of the assessment. He said he would be better able to obtain better employment in Queensland and enjoy a more comfortable lifestyle living in G. He said he has a good relationship with the girls. But he said that C is having “the usual issues of being a teenager” and displaying opposition to adult and parental authority.
Mr T considered that the partner “is a relatively young man to have parental responsibility for 2 girls aged 11 and 13 years. The nature of their development is challenging for more mature parents and (the partner) does not have any substantial period of knowing these children or being able to interpret their behaviour so as to make appropriate responses. He may be prone to see their challenges that are a part of their development as very personal attacks upon him rather than features of personality development.”
Overall, the mother’s partner impressed the Court as a young immature man with a negative attitude towards the father and little insight into the perspectives of the children and their father.
The members of the mother’s family all reside in the Northern New South Wales area. The mother’s sister lives in the same area and they have a close relationship. She has children. The mother sees her about once a month. The children are a boy aged 10 and a girl aged 6. Her sister, in her affidavit, says that she will visit the mother and the girls if they move to Queensland.
The mother’s brother resides in the Northern New South Wales area. He is married and has 2 children; a boy aged 5 and a girl aged 3. The mother’s evidence is that she does not see him often. The mother visits her parents at their home in the same area. She also has another brother who resides in R. The mother has no family members in Queensland.
The mother is 35 years of age and Mr T described her as “pleasant and cooperative”.
In her first affidavit in the proceedings, the mother raised issue about the father at times not being personally present for the whole of the time when the children were with him at his parents’ place during contact. It appears that occasionally the children in school holidays stayed overnight with the paternal grandparents, with whom they are close. The mother sought to take issue about this and her evidence implied that it was some neglect of the children if the father was not personally present for the whole of the contact periods, notwithstanding that he might be working during some of the school holiday periods.
She gave further evidence in a similar vein in her subsequent affidavit in June 2006. The matters she raised did not reflect adversely on the father. There was no suggestion the children were not properly cared for or enjoying their time during contact periods. She referred to the contact periods as “father time”.
It was also unfortunate that in August 2005 when the father was having a telephone conversation with the mother regarding her proposal to move to Queensland she said to M, “Your Dad is a fuckwit and an arsehole”.
However, the mother concedes the father has a strong bond with the girls. She told Mr T that the father had “filled the role of father” for C when they were together and had continued this since their separation. She also conceded that he had been a very supportive parent to both the girls, particularly in the time the mother had been suggesting she would move to Queensland. The mother said that she had “allowed” his relationship with the girls to continue, even though immediately following the separation she perceived him to be angry with her for some years. She said that since the proposed move to Queensland was raised, he had been more assiduous in being present with the girls during the contact periods.
The mother also conceded that in December last year she forgot to inform the father about the school presentation night at the girls’ school. She said it was a mistake and it was not because she was “cranky with him”.
In cross-examination the mother said she would only have the best interests of the girls at heart. She was referred to Mr T’s report where he said:
78[C] has very strong attachments to both [her parents]. At present her relationship with [her father] is very supporting, since apart from his relationship with [M], no other relationship has the same call on his attention than the one he has with [C].
79With [C’s] psychological condition brought about by her circumstances she is very reliant upon [the father] now and any significant reduction in his availability to her would be a great loss.
It was put to the mother that C has very strong attachments to each of the father and the mother and her relationship with the father is a very supportive one. The mother had some difficulty understanding those propositions, but she conceded them. The mother said that she did not think it would be bad for C to change school, her location, her friends and move away from the father. The questioner quoted the Welfare Report where Mr T expressed concern that a loss of time and attention from the father would be “very significant for C’s ability to continue her development and overcome her current condition as diagnosed”. The mother then conceded that she would have to be concerned for C’s welfare if there were such a change.
The mother also told Mr T that she believed she would be able to provide arrangements which would enable the children to continue their close relationships with the father and his parents, including several visits to the W area each year.
If the mother moves to Queensland, there will be expenses for travel if the children are to spend time with the father in the Northern New South Wales area. She proposed initially that the girls travel to this area for time with the father in each school vacation and he be able to have weekend contact in Queensland in school terms. Then in cross-examination the mother said that if she goes to Queensland she will consent to an order for the children to be sent back to spend time with the father on 3 occasions per annum in school terms and that would be additional to her other proposals for him to travel to Queensland to have time with the girls and for the girls to travel down in each school vacation. Then during the husband’s case the mother increased this proposal to 2 weekends per term in the Northern New South Wales area with the travel at her expense.
The mother has not been in paid work since the second half of 2005. Now with the new baby, she will not be in paid work for at least 6 months after the birth. She said in her evidence that she would meet the costs of sending the children back for contact with the father and said she could afford it, but it appears that she cannot. The question would then arise as to whether her partner would be prepared to meet such costs or contribute to them. Given his negative behaviour towards the father on occasions, his level of immaturity and his lack of insight into the perspectives of the children and the father, it is likely that he would not.
The mother tended to suggest that the girls are close to her partner’s mother and step-father. But this is not so. They have seen each other only infrequently and for short periods. The mother conceded in cross-examination that the girls have not been to G. The only times they have interacted with the partner’s mother and step-father have been visits by them to the Northern New South Wales area; 3 occasions in 2005, and 3 occasions in 2006.
Mr T reported that when he met the mother for interview she professed that “she wanted the best outcome for her daughters and that she wished to avoid any error in providing the best outcome for her daughters”.
The mother conceded in cross-examination that M has said her contact with the father will be not as good if she is living in Queensland. The mother had said that she wants what is best for the children. She conceded that M’s happiness is one of the most important things for her and C’s happiness is the other. The mother also told Mr T that psychologically there was no difference between the girls in that for both of them the father was their father and she totally respected that situation and was pleased there was no difference for the girls in that regard.
In cross-examination the mother alleged that she was “pretty sure” she told the father on their honeymoon that she wanted to move to Queensland. She said she did go to Queensland on 1 visit with her second partner, but did not go with the father. She said that she did suggest to the father that they move to Queensland, but he said, “No, he wanted to stay with his family”. She conceded that the only time she went to Queensland with her second partner was for a holiday.
Mr T concluded from his interviews with the mother that she had, quite apart from her partner’s connection with Queensland, previously had a “strong emotional connection with living in Queensland”. This is despite the fact that she has not lived there. He reported that:
22. [The mother] has had a wish to move to Queensland since she was in her late teenage years. This was when she had left her parents' home. [The mother] left her parents' home relatively early at sixteen years to avoid significant disharmony in her parents' home. It appears that the idea of moving to Queensland was a concept that [the mother] adopted as part of her strategy to improve her life as she perceived her life needed to improve.
23. Since the move from her parents' home had some advantages, the idea of moving to Queensland appears to have gained a meaning for [the mother] as a means to further improve her life. This was enhanced again as an option for [the mother] following her beginning a relationship with her now partner.
Mr T formed a view that her wish to move to Queensland was reinforced by the fact that the mother’s partner had been previously employed in more favourable jobs than the one he had in the Northern New South Wales area. The mother emphasised to Mr T that an “improved lifestyle” would be available if she and the girls could move to G. However, the evidence in these proceedings did not support any such conclusion.
Mr Coyle, the mother’s legal representative, told the Court later in the hearing that the mother is agreeable to the orders being made expressed to apply to C as well as M.

THE RESPONDENT FATHER AND HIS PROPOSALS

The father opposes the mother’s application that the girls move to Queensland.
He resides in a 3 bedroom unit at U near D. The girls each have their own room in the unit. The girls’ rooms are each decorated with photographs and personal items. The girls also have friends who reside near the father’s unit. From time to time they have friends sleep-over at the unit. The father has also conducted birthday parties for the girls and their friends at the unit.

The father has no present plans to commence cohabitation with any person. The father has been involved with the children’s education and has attended functions at their school. The girls play netball on weekends and he attends to watch their games, even on weekends which are not contact weekends. He also attends their annual netball presentation.
The father often takes the girls to the beach and they have body-boards. He takes them to the movies in school holidays. They have been attending netball for the last 2 years and the father is on the canteen roster. At his home the girls enjoy listening to music and karaoke activities. On Tuesday nights he spends the evenings with the girls at his home. He prepares dinner while they sit and talk, do their homework or watch television. After dinner he drops them home. On weekends they play with friends or go out with him. They have some friends who sleep over and this happens about once every 2 months.
At one stage the girls were enrolled in swimming lessons on Tuesday nights. The father raised no objection to this and took them to swimming lessons. The swimming lessons ceased at the end of the season.
The father’s parents reside at B in the X Shire. His sister and brother both reside in the Northern New South Wales area. His sister has a daughter 17 months old and his brother has 2 sons; one aged 4 and the other aged 15 months. The father enjoys the strong support of his parents and siblings. When the girls are with their father on a Sunday they usually go to the home of his parents for Sunday dinner. His brother and sister also attend with their families. The girls play with their cousins.
The father is 32 years of age. Mr T described him as, “friendly and co-operative”. He was well spoken and in the witness box he presented as insightful and as a person much involved with girls and very sensitive to their needs, including their emotional needs.
The mother conceded in cross-examination that twice when C has wanted to leave home, the father has assisted and talked her out of doing so. She conceded that in addition to Child Support the father has also twice helped her out with payment of school fees. The mother said that she is pleased that he has co-operated in assisting her in managing the children, particularly when C was talking about leaving home.
Mr T reported that according to the mother, the father’s current parenting behaviour “has been a work in development over the years since their separation”. He reported also that the mother “has no direct criticism now of his parenting behaviour”.
The father told Mr T, that based on his experience of the mother as a parent, he is confident that if the Court finds the girls’ best interests lie in them remaining in the W area, she will accept that finding, because she is so committed to her daughters.
The father’s evidence is that he used to have the mother’s home telephone number, but when her relationship with her then partner ended about 2 years ago, her telephone number was changed. She told him it was disconnected because her previous partner was telephoning her. When the father asked for her new telephone number, she refused and said the reason was that she did not want her former partner to obtain the number. The father, however, has the mother’s mobile telephone number, but his evidence is when he calls her on that number, there is often no answer.
In cross-examination the father conceded that the mother has always promoted and encouraged his relationship with C. He said he believes she values his association with C and is always more than fair about promoting that relationship. He conceded that although the current orders are qualified by the words “If [C] wishes”, the mother has not relied on that as a reason for C not attending contact. He said he was thankful to the mother for that and he did not believe that if she moved to Queensland she would frustrate his contact with C. He said he was confident the mother could be relied upon to continue promoting and supporting his relationship with the children.
When he was asked whether he had any criticism of the mother for wanting to go to Queensland, he answered, “Yes, because she’s moving my children”. He said he believed she wanted to go to Queensland because her partner wanted to go. He conceded that if she cannot go she may be disappointed. He acknowledged that she has a right to live where she likes, but not to take the children. He said he accepts that she wants to move and he accepts that she will be disappointed if she cannot. He was asked whether he conceded that it is important to her that she be able to organise her life so as to live where she wants, and he answered, “If possible”.
The father said in cross-examination that he understands the mother wants to move and he assumes that she is in love with her partner. He said, “She’d be optimistic about the process”. He said he is concerned about whether they would be able to pay the air fares for the girls to visit him.
In cross-examination the father conceded that the school presentation night when the mother failed to notify him of the event, was the only occasion where she had failed to keep him informed of school events.
When I asked the father what he could do to ensure his dealings with the mother are respectful, he said, “I suppose say ‘Hello’ to her and him”. He said he had not thought about having a cup of coffee with the mother’s partner to talk with him. When asked how he can improve the relationship with him, he said, “Just by saying ‘hello’ when I pick up the girls”.
He conceded that the girls probably understand that he and the mother are not friends. He conceded that they probably do not know other people who meet fortnightly and do not say “hello”. He also conceded that the girls probably think that the relationship is bad. He said that he and the mother had previously progressed to saying “hello” and then this dispute arose about the girls moving to Queensland. He said that since about February 2005 they have not been saying “hello” to each other.
Regarding the mother’s partner, the father gave evidence about occasions when the partner swore at him and was rude. He said that nothing happened “to provoke his outbursts”, and, “I don’t get on with him at all”. He said he tried to say “‘hello’ at first and then these things came up and the swearing at me, so I don’t talk to him”. He said he has no idea what provoked him, but denies it was any behaviour of his towards the mother.
The father acknowledged in cross-examination that he does not pay Child Support for C. But he said it had occurred to him that he might. He said he has provided some assistance over the years, including payment of her netball registration fees for the last 2 years and providing financial assistance for the mother for the purchase of glasses for C and fees for school camps.
In cross-examination the mother conceded the father has only 4 weeks annual leave per annum.
He said the girls are computer literate and have e-mail addresses at school. But he said he and the girls do not exchange e-mails and he has not used a webcam. He said he is not aware if the girls have. He said the girls do have mobile telephones, but most of the time when he calls them he does not get an answer.
During the hearing the mother amended her proposals for contact if she moves to Queensland in accordance with Exhibit M2. This occurred after lunch on the second day before the father was cross-examined.
In the application the mother was proposing the following contact (by M only):
a)half each summer vacation;
b)11 days in each other school vacation;
c)the father to pay the fares for M to travel to and from W for school vacation contact;
d)up to 2 weekends in each school term with the father to travel to Queensland to implement the contact;
e)if the mother were M in the area where the father resides, “a reasonable time with [M]”.
The changes involved in the amendment were:
a)the mother was to “use her best endeavours to ensure that [C] accompanied [M]”;
b)she would meet the cost of additional weekend contact every 4^th weekend during school terms, to be implemented by the girls flying to and from W.
This was raised with the father in cross-examination and he acknowledged that he understood the effects of her proposal. He also acknowledged that he could choose to move to Queensland, but said he would need to consider that. He conceded that he is a single man with no other children. He conceded that it would be possible for him to move there.
He also said that he has considered the possibility of the children living with him. But he said that because he works full time and the mother does not, it would require an adjustment for him. Mr Hill, appearing for the father, informed the Court the same day that the father was agreeable to the order being expressed to apply to both girls.
The inference from the father’s evidence was that he considered that the best arrangement for the children would be for them to continue residing with their mother in the Northern New South Wales area and continuing to spend time with him as at present.

MR T’S CONCLUSIONS

Mr T concluded his report as follows:
EVALUATION:
76. The child [M] has enjoyed the appropriate cooperation of her parents since their separation for her to enjoy a very sound development. She strong appreciates the contribution of each parent and as would be expected would prefer, if practicable more time with both parents. She certainly has a high value on their past and continuing cooperation, since this brings so many benefits for her. This is reflected in her very sound development, including school progress.
77. [M] also has a need for her relationship with [C] to continue as she gains a lot from this relationship of shared experiences.
78. [C] has very strong attachments to both [parents]. At present her relationship with [the father] is very supporting, since apart from his relationship with [M], no other relationship has the same call on his attention than the one he has with [C].
79. With [C’s] psychological condition brought about by her circumstances she is very reliant upon [the father] now and any significant reduction in his availability to her would be a great loss.
80. It appears that at present with [C’s] development needs as they are a loss of [the father’s] time and attention would be very significant for [C’s] ability to continue her development and overcome her current condition as diagnosed. A reduction in her time with [the father] would be as great an impact as would be the loss of significant time with her mother.
81. While the move to [G] would be beneficial for [the mother’s partner], if his evaluation of his employment prospects are correct and that raising a new child in the environment as described would be attractive for [the mother], overall there is too much to be lost for [the girls] for any recommendation to allow [the mother’s] application to be accepted by the court.
RECOMMENDATIONS:
1.The current orders for [the girls] to spend time with [the father] are confirmed.
2.The relationship between [C] and [the father] has legal status commensurate with the psychological relationship they have as daughter and father.

RELEVANT LAW

The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(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.
Subsection 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) provides:
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)      to develop a positive appreciation of that culture.
Section 60CA is as follows:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Subsection 60CC provides:
Determining child’s best interests
(1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)      The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)      Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)      the nature of the relationship of the child with:
(i)       each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)       each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)       the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

SUBSECTION 60CC(3) FINDINGS

The findings under subsection 60CC(3) are as follows:

a) Views of the child

Neither girl expressed to Mr T a preference to move to Queensland. Both girls are concerned about not continuing their close relationship with their father.
C’s wish expressed to Mr T, is that they not move to Queensland. M was careful not to express a clear preference to Mr T but she did express a wish to spend as much time as possible with each of her parents.

b) The child’s relationships

For each of the girls the primary attachment is with the mother. They are both dependant upon her emotionally and in numerous other ways. Each has a close, loving relationship with her. The girls’ next most significant relationships are with each other and with the father. These relationships are close, loving, and very valuable to them.
C has no relationship with her natural father. The father is her psychological father and he provides considerable emotional and other support to her. He has been spending time with the girls every week for more than 5½ years at the time of the hearing. He is a very caring and involved father to both girls. Mr T considers the father’s relationship with C is such that any reduction in the time she spends with him will be “a great loss” for her.
The girls’ next most valuable relationships are probably their relationships with the paternal grandparents. And after those, their relationships with their cousins, aunts and uncles on the father’s side and the aunt on the maternal side.
In addition they also have valuable relationships with friends, peers and teachers at school, team members at netball and other children and Adults with whom they associate living in the Northern New South Wales area.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

Subsection 60CC(4) provides:
4)        Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)      to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)      communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Both the parents have demonstrated until now a willingness and ability to facilitate and encourage for each child a close and continuing relationship with the other parent.
If the mother and the girls move to Queensland and the father continues living in the Northern New South Wales area, the mother’s financial circumstances, even with assistance from her partner, are unlikely to fund any more than 4 trips for the girls to this area to spend time with the father and extended family. Even with the father funding travel to Queensland for weekends with the girls, the parties together are unlikely to be able to facilitate anything but infrequent occasions for the children to spend time with the father (compared with what has been occurring since 2001).

d) Likely effect of any changes including any separation

If the girls move to Queensland it is likely to involve a serious downgrading of their relationships with the father, because of the infrequency of contact. It is also likely in that way to involve a separation from the paternal grandparents with whom they have close and loving relationships and from other members of the paternal family, including their aunts and uncles and cousins and also members of the extended maternal family.
Such a change will also involve a change of home, a move to a different locations, a change of school, and a separation from friends, teachers, peers, and associates in the area where they now live.
These changes are likely to be quite damaging to C because of her ADHD and combined with the loss of time with the father, she is likely to have problems coping generally. She is likely to have emotional difficulties. Her progress at school is likely to be impeded by the change.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

If the children move to Queensland, the distance and expense involved in them spending time with the father will prevent them maintaining the present close, loving and supportive relationship they have. It is likely that the relationship will be less so and there will be a significant loss to both girls.

f)Capacity of each parent and any other person to provide for the child’s needs

Generally the capacities of each parent will be satisfactory except that if the children move to Queensland and the father remains in the Northern New South Wales area the parties will not have the financial capacity to enable the children to spend sufficient time with the father to avoid the loss referred to under paragraphs (e) above.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

C has no relationship with her natural father. The father is her psychological father. She has a special need to continue the strong and close relationship they have.
M also has a need to continue the close, supportive relationship she has with the father.

h) If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right

This does not apply

Attitude to the child and the responsibilities of parenthood

Subsection 60CC(4) provides:
4)        Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)      to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)      communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The attitude of the parents in this regard is generally adequate.
The mother’s reasons for wanting to move to Queensland are of concern. The mother offered several reasons for moving. There is no doubt she wants to live in Queensland and has had the idea of doing so for a long time. But she has never lived in Queensland; only holidayed there for short periods.
The reasons she gave for her wish were better lifestyle, housing prices, better education, better entertainment for the children, and better pay rates for retailers but were not substantiated by proper evidence. Her belief (and those of her partner) about such matters were not established as factual.
The reality is they have not yet married, they are both unemployed, and the move for her will involve separating from her family and for him separating from his family except his mother and her husband. For her it would be a move away from all her friends and associates. The mother’s case did not establish that the decision to move is based on mature consideration and good reasons. On the contrary, it appeared as poorly considered with very little research and a very real prospect of disappointment.

j) Any family violence

There is no such matter.

k)Any family violence order that applies to a child or a member of the child’s family

There is no such order.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

If the mother takes the children to Queensland there is a greater likelihood of further proceedings, as it is likely that the proposals she makes for the children to spend time with the father, which would be necessary to maintain a meaningful (though lesser) relationship between him and the girls, would not be implemented.

m)Any other fact or circumstance the Court thinks is relevant

There is no other matter.

PRIMARY CONSIDERATIONS

The findings as to primary considerations under Subsection 60CC(2) are:

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

The relationship each of the girls have with each of the parents is extremely valuable to them. The mother’s proposal would result in a significant loss to the girls by significantly downgrading their relationship with the father.

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

This is not an issue.

PARENTAL RESPONSIBILITY

There is no proposal of either party to change the present situation whereby (pursuant to Section 61C of the Family Law Act) each of the parents has parental responsibility for M and the mother has parental responsibility for C. There has been no submission regarding parental responsibility.
In all the circumstances it would be contrary to the interests of the girls to change the present situation by applying the presumption under Sec.61DA of equal shared parental responsibility for M or to alter the situation regarding parental responsibility for C.

OTHER CONCLUSIONS

The interests of the girls are best served if the mother’s application to move the girls to Queensland is refused and the present arrangements for M are confirmed and, as agreed, extended to apply to C.
The father should have an opportunity to argue his costs application if he elects to proceed with it. If he does not so elect, it should be dismissed.

________________
The Hon Justice Mullane

11July 2007

[2007] FamCA 678

11 July 2007

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Consent

Costs

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Jurisdiction

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Standing