Beatty and Rubin

[2015] FCCA 172

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEATTY & RUBIN [2015] FCCA 172

Catchwords:
FAMILY LAW – Relocation – parents brief relationship following introduction through a dating agency results in unexpected pregnancy – two very good parents – involvement of solicitors correspondence adds to conflict and fuels further disputes – parents communicate directly with respect and courtesy – failure of solicitor to inspect subpoena material, adds conflict about diagnosis of separation anxiety – finely balanced matter – relocation application dismissed – father has much to offer their young son – mother’s proposals for contact four times a year living 4000 kilometres apart not in the child’s best interests.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Mazorksi & Albright [2009] FamCA 520
MRR v GR [2010] HCA 4
Taylor & Barker [2007] FamCA 1246
McCall & Clark (2009) FLC 93-405
Rice v Asplund (1979) FLC 90-725

Applicant: MS BEATTY

Respondent: MR RUBIN

File Number: CSC 481 of 2013

Judgment of: Judge Willis

Hearing dates: 3-5 November 2014

Date of Last Submission: 5 November 2014

Delivered at: Cairns

Delivered on: 5 February 2015

REPRESENTATION

Solicitors for the Applicant:  Self-represented

Solicitors for the Respondent:  Murray & Lyons

Counsel for the Independent Children’s Lawyer: Ms Wilson

Independent Children’s Lawyer: Ms Lehmann, Lehmann Featherstone Lawyers

ORDERS

Parental Responsibility

1. That the parties each have equal shared parental responsibility for the child [X] born [omitted] 2010 (“the child”) regarding the long term issues concerning the care, welfare and development of the child including but not limited to:

   (a)The child’s education;

   (b)The child’s religious and cultural upbringing;

   (c)The child’s health;

   (d)The child’s name.

Child’s living arrangements

1. That the child live with the Mother in Cairns at all times, other than when he spends time with the father as agreed or pursuant to the terms of this Order.

2. That the father (who lives in Cairns) will spend time with the child at all times as may be agreed between the parents and failing agreement as follows:-

From November 2014 until January 2015

1. Each alternate weekend from 9:00 am Saturday until 5:30 pm Sunday; and

2. Each Wednesday from after day care or school until 7:00 pm.

From January 2015 until May 2015

1. Each alternate weekend from Friday afternoon until 5:30 pm Sunday; and

2. Each Wednesday from after school until 7:00 pm. 

From May 2015 until January 2016

1. Each alternate weekend from after school Friday until the commencement of school on Monday (or Tuesday if a public holiday or pupil free day); and

2. Each Wednesday from after school until 7:00 pm. 

From January 2016 until January 2017

1. From after school Thursday until before school Monday each alternate week (or Tuesday if a public holiday or pupil free day); and

2. Each alternate Wednesday from after school until 7:00 pm.

From January 2017

1. From after school Wednesday until before school Monday each alternate week (or Tuesday if a public holiday or pupil free day); and

2. Each alternate Wednesday from after school until 7:00 pm. 

From January 2018

1. From after school Tuesday until before school Monday (or Tuesday if a public holiday or pupil free day) each alternate week;

From January 2019

1. Each alternate week from after school Monday. 

School Holidays

1. The child will spend one half of the Easter, June/ July and September/ October school holiday periods with each parent in each year as follows:

   (a)With the father for the first half of the gazetted school holiday periods each odd numbered year, and the second half of the gazetted school holiday periods in each even numbered year.

   (b)With the mother for the second half of the gazetted school holiday periods in each odd numbered years, and the first half of the gazetted school holiday periods in even numbered years. 

Christmas School Holidays 2015

1. The child will spend alternating weeks with each parent (week on week off).

Christmas School Holidays 2016

1. The child will spend three weeks with the father to be taken in periods of no greater than 2 weeks duration. 

Christmas School Holidays 2017

1. The child will spend one half of the Christmas school holidays with each parent as follows:

   (a)The father to have the first half of the Christmas school holiday period in 2017 and each alternate year thereafter and the second half in 2018 and each alternate year thereafter;

   (b)The mother to have the second half of the Christmas school holiday period in 2017 and each alternate year thereafter and the first half in 2018 and each alternate year thereafter. 

Special Days

Mother’s Day and Father’s Day

1. In the event that Father’s Day falls on a weekend that the child is not otherwise spending time with the father pursuant to his time in these Orders, or Mother’s Day falls on a weekend that the child is not living with her pursuant to the terms of these Orders, the parties will swap their respective weekends to ensure that the child spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother.

Birthdays

1. On the child’s birthday the child shall spend time with the non-resident parent from 3:00 pm until 5:00 pm if the birthday falls on a school day and from 9:00 am until 2:00 pm if the birthday falls on a non-school day, with the non-resident parent to collect the child from school if it is a school day, subject to Order 24 herein.

2. In the event that the mother’s birthday falls on a day when the child is living with the father pursuant to these Orders, then the mother shall spend time with the child at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm on her birthday, subject to Order 24 herein. 

3. In the event that the father’s birthday falls on a day when the child is living with the mother pursuant to these Orders, then the father shall spend time with the child at times to be agreed for a period of no less than four (4) hours and failing agreement between 3:00pm and 7:00pm on his birthday, subject to Order 24 herein.

4. Orders 21-23 herein will not apply if the child is otherwise spending block holiday time away from Cairns with the other parent during school holidays, as provided for in these Orders.  In other words, Orders 21-23 for birthday time are not intended to interfere with either parent’s block holiday time with the child, in the event that the other parent is away from Cairns or has other plans for their holiday with the child.

Christmas Day

1. In the event that the parent who otherwise has the child in their care for the first half of the holiday periods pursuant to the terms of these Orders (which includes Christmas Eve, Christmas Day and Boxing Day (“the Christmas days”), has not travelled away from Cairns for the Christmas holidays, the parent with whom the child is living on the Christmas day will retain the child until 2:00pm on Christmas Day and thereafter the child will spend time with the other parent from 2:00pm onwards until 2:00pm on Boxing Day, a period of 24 hours, after which time the child will be returned to the other parent to continue on with their holiday period.  The Court notes that this provision will only apply when the party who would otherwise have the child over the Christmas days elects not to travel away.

2. In the even the parent who has the care of the child pursuant to Order 25 herein is travelling outside of the Cairns area of the Christmas days, they are to provide the other parent with 14 days notice.

Communication

1. Each of the parents shall be permitted to communicate with the child by telephone or Skype or Facetime each Wednesday (or other time as agreed between the parties) when the child is not in that parent’s care between 5:00 pm and 5:30 pm.  The non-resident parent shall initiate the call and the other parent will facilitate the call. 

Handovers

1. Handovers are to occur to and from the child’s school/day care on school/day care days. The non-collecting parent is not to attend school/day care at handover time. On non-school/day care days, handovers are to occur to and from the Cairns Central Carpark or other agreed location.  

General Orders

1. The Mother and the Father shall each keep the other informed of their current residential address, their current mobile telephone and landline telephone numbers and email address and shall advise the other parent of any changes within forty-eight (48) hours of any change. 

2. In the event of any parenting dispute the parties are to attend Family Dispute Resolution in an endeavour to resolve the dispute.

3. The Independent Children’s Lawyer is discharged. 

4. All outstanding applications including the mother’s relocation application are dismissed and removed from the pending cases list. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 481 of 2013

MS BEATTY

Applicant

And

MR RUBIN

Respondent

REASONS FOR JUDGMENT

1. The mother and father in this matter are unable to agree that the mother be permitted to relocate with their child to Melbourne.

2. The applicant mother is Ms Beatty born [omitted] 1975 (“the mother”) and the respondent father is Mr Rubin (“the father”) born [omitted] 1968.

3. There is one child of their union being [X] born [omitted] 2010 (“the child”).

4. Through her amended application for final orders the mother seeks leave of the Court to relocate to Melbourne with [X] and as seen at clause 9, the mother proposes a graduated increase of the current time that [X] spends with his father until such time as she relocates.  It is the mother’s proposal that she be permitted to relocate in September next year, namely September 2015.  At that time [X] will be aged 5 years and 4 months old.

5. At the outset I note that procedurally there has been very little Court involvement with the parties only making 2 appearances and on each occasion, orders were agreed between the parties.  This is an important point in this matter as now at the trial, part of the father’s case is that he has been prevented by the mother from having as much time with [X] as he should have ought to have had.

6. The mother set out in her proposal how [X]’s current time with the father (which at the date of the trial is overnight each alternate weekend commencing on 9:30am Saturday morning and concluding at 5:30pm on Sunday) is to progress.  The mother proposes that at some time after September 2015 [X] be permitted to relocate with the mother and live in Melbourne, which is where the mother lived prior to her moving to Cairns in July 2004, now some ten years ago.

7. By the conclusion of the trial, the mother has agreed to the father’s time with [X] unfolding and progressing in accordance with a proposal of the Independent Children’s Lawyer.[1]  

   [1] Exhibit ICL11.

8. As can be seen from the mother’s amended final orders, she no longer sought orders for sole parental responsibility as per her initiating application.

9. The first order of this Court made on the first return date of 15 October 2013 by consent, provided for [X] to live with the mother and spend time with his father each alternate weekend from 9:30am until 5:30 pm Saturday and Sunday. The mother sought to relocate in those orders and also sole parental responsibility.  Orders were also made for Christmas day, the child’s birthday and other special occasions.  The Court appointed the ICL and directed the preparation of a Family Report be organised by the ICL.

10. The matter was adjourned over until 4 February 2014 after the parties had attended a Child Inclusive Conference in November 2013.

11. An administrative adjournment was granted at the request of the parties given that the Family Report had not been released and the matter was put over until 7 April 2014.

12. On that date again by consent, the father’s time with [X] was increased to each alternate weekend from 9:30am on Saturday until 5.30pm Sunday.  It was also listed for trial.

13. Up to this point, the father had been represented by a different solicitor from the trial solicitor who filed a Notice of Address for Service on 3 April 2014.

14. The mother’s former lawyers filed a Notice of Withdrawal on 28 August 2014 and she became self- representing after that time.

15. Up until the trial, the parties between themselves and their lawyers decided upon how the father’s time should unfold and the frequency of that time.  The proposed arrangements put to the Court as an agreed order were on each occasion sanctioned by the Court. In relation to the second orders made for the father’s time to increase on 7 April 2014, the ICL supported the arrangements.  The parties did not seek any determination to be made by the Court, as they agreed to the proposed arrangements.

16. As I have said elsewhere, the father’s position at trial is that the mother has been unreasonable in not agreeing to the child having overnight time with the father at the time nominated by him.  Also he submits that the mother has been unreasonable and inflexible in not agreeing to his specific proposals for additional time.  When I say his specific proposals, I mean that he once requested an additional period of time on a particular Wednesday when his parents were visiting. The mother agreed to the extra time, but said that she wanted it to occur on a Saturday when the grandparents were still visiting.  There is no dispute that the extra time did not occur.

17. As to the father’s request for additional time, the parties attended mediation prior to any orders being made.  The parties attended a second mediation when the mother indicated that she wished to relocate.  Understandably, the parties could not achieve consensus. That is when this litigation appears to have commenced.

18. The father is opposed to [X] relocating.  In the event that the mother is not permitted to relocate [X] to Melbourne, the father seeks orders to steadily progress [X]’s time with him and as I have already referred to, the mother now agrees with that proposal, albeit her primary proposal is that she be permitted to relocate [X] to live with her in Melbourne.

19. The focus of the dispute therefore is the mother’s proposed relocation.

20. The Court has heard evidence of how each of these parties has paid considerable sums for legal representation in relation to this issue.  The mother, who earns $36,000 a year paid legal fees of $30,000. Ultimately she could not sustain this expense. Those funds it seems have been expended in 12 months.  Similarly the father has spent $40,000 from his salary of $120,000. He told the Court that it has cost him all of his surplus funds for the past 2 years.

21. Generally, the involvement of competent lawyers who observe the best practice principles for family lawyers recommended by The Law Council of Australia will assist parties to achieve a speedy resolution.  The Court has made the observation that in this matter however, based on the tone and content of the letters exchanged between the lawyers, and particularly the letters written on the father’s instructions, the intervention of lawyers has been expensive and simply lead to the introduction of hostility and accusations that the parties themselves have chosen not to engage in when dealing with each other directly. 

22. The stark contrast between the communication between their lawyers and their personal communication is well illustrated when comparing their respective solicitor’s letters with the entries in the parties’ communication book.

23. The ICL submitted through her Counsel that the communication book was an example of respectful and thoughtful communication rarely seen in this Court.  I agree without reservation.

24. Unfortunately, the communication between the lawyers is the antithesis of the communication in the communication book.  The engagement of lawyers by each of the parties has in my view, inflamed the otherwise good relationship between these parties.  The communication as seen in the father’s solicitor’s letters to the mother is demanding, over bearing, accusatory, and dictatorial. It is written with threats of further action if responses are not received within the time frames set by that lawyer.  The letters make constant references to terms such as “we insist” and took the form of cross-examination.     

25. The father’s solicitor’s letters were seen by the mother as being aggressive and intimidating. I accept that they have been. The problems that these communications led to will be discussed in these reasons.

26. One of the issues which has been occurring in the background of the correspondence, has been the issue of the child suffering from separation anxiety.  The mother has observed the child’s symptoms of separation anxiety as explained by her. Her position has been that the father was dismissive of her concerns regarding [X]’s behaviour and the difficulties she was having when [X] returned from spending time with the father.

27. The father’s position has been that [X] is not displaying any of the described symptoms whilst with him. He maintained he had not seen any evidence of any diagnosis of [X] having separation anxiety.  He therefore regarded the mother’s reporting about how this condition was effecting [X] as a baseless concern of the mother and that this issue was simply being used by the mother to slow down or restrict his time with [X].

28. There was however a sound factual basis for the mother to advise the father that [X] had separation anxiety. The advice of Dr M, a paediatrician, was in the Court file from December 2013 onwards.  It was available to both parties, who were each legally represented, to inspect as part of the subpoenaed material.  It would have assisted the parties in my view, if the father had been made aware of the letter of

    
    

    Dr M confirming this diagnosis.  His former lawyer either did not inspect the material, or if it was inspected, the contents were not conveyed to the father.  There is no record of the father’s first solicitor ever inspecting the material.

29. It was also unfortunate indeed that the inspection of the subpoenaed material by the ICL did not reveal that the second page of a two page report was missing, any earlier than when the Court asked for the report to be tendered during the trial.

30. What became abundantly clear at the trial is that subpoenas were issued back on 4 December 2013 by the ICL to doctors and hospitals, and the ICL inspected that material on 20 December 2013.  Within those subpoenas was a letter from the paediatrician, Dr M wrote, “I think that [X] has separation anxiety.”  Only at the trial was it discovered that the second page of Dr M’s letter was “missing” from the subpoenaed material. 

31. The mother’s legal representative seems to have filed a notice to inspect in March 2014, though there is no record of that inspection occurring.

32. Vigilance by any of the legal representatives, including the ICL, but particularly the lawyers for each of the parties, would have in my view assisted to defuse the simmering dispute between the parties as to whether or not [X] was suffering from symptoms of separation anxiety.

33. Having said that, whilst the father was not privy to the report, (and neither was the mother) the mother reported back to the father via a solicitor’s letter in March 2014, that the diagnosis that [X] suffered from “separation anxiety” had been made.  This letter seemed to result into a semantic dispute or misunderstanding by the father and debate between the parents, that [X] did not have separation anxiety “disorder”, or whether he had symptoms of separation anxiety.

34. The amount of time taken up by the single issue during the trial can be seen in the extensive cross examination by both solicitor advocate Mr Wright and Counsel for the ICL Ms Wilson, directed to the mother and her other witnesses.

35. The ICL was directed to issue a subpoena to the child’s counsellor in the orders made in October 2013 when the matter was listed for trial.

1. Despite that order, the subpoena was not issued to the child’s counsellor Ms C, until days before the trial in November 2014.   This oversight resulted in Ms C having to be contacted on the day of trial to ask her to move clients around and appear as she did not have the 7 days notice required by a subpoena.  I note also that the ICL’s Counsel indicated to the Court at the commencement of the hearing, that the ICL did not need to hear from Ms C.  The Court indicated that she should be called, as indicated by the Orders of October 2013.  When Ms C did appear, the ICL’s Counsel elicited much evidence in chief from Ms C and relied on it during the ICL’s submissions.  The family Report Writer was also, at the request of the Court, provided with a summary of the evidence given by Ms C.

2. Statements of fact represent findings in this matter unless indicated otherwise.

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”.  Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).”  The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.

2. When I determine the best interests of [X], I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for [X]’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.

3. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) 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 only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

4. This application centres upon an application by the mother to relocate.  The Court has had regard to the authorities including Taylor & Barker [2007] FamCA 1246 and McCall & Clark (2009) FLC 93-405. McCall & Clark involved a discussion of the prospective approach in terms of s.60CC3(a). 

Witnesses

The Mother

1. The mother was cross examined thoroughly over a two day period by Mr Wright, solicitor advocate for the father and the ICL’s Counsel Ms Wilson. On the first day the mother appeared to be nervous, quite defensive, and at times, and angry.  However, as the mother became used to the process, she appeared to be less stressed and settled into responding to questions without taking offence at the questions. 

2. At all times I consider that the mother gave her evidence honestly and openly. She explained the difficulties she had experienced with [X]’s challenging and quite demanding behaviour.  I had a strong impression she was a very caring and sensitive mother devoted to ensuring that [X]’s needs were addressed. This was particularly in relation to his distress, crying, nightmares, insistence on having his mother close to him until he fell asleep, and his tantrum type behaviour.  The mother had given up her own social arrangements, such as cancelling plans to sleep over away from home, on the basis that [X] just would not settle away from his own home.  The mother found [X]’s behaviour exhausting and challenging. It occurred regularly after [X] had time with the father.  The first person who raised with her that there was a direct link between [X] being unsettled and showing signs of separation anxiety, was the day care worker at [X]’s day care. She inquired of the mother if something was happening for [X] each fortnight as she had noted his behaviour disintegrating to some degree each fortnight.

3. From there, the mother saw her own general practitioner and [X]  was referred to Ms C, a psychologist  who has worked for 20 years in a variety of areas within the mental health sector and the last 8 years in private practice providing services to children and adults.  The referral was based on [X]’s behavioural difficulties and some issues with separation and anxiety in the context of his behaviour when returning from spending time with the father.

4. The mother also followed the advice of her own mental health worker, a psychiatric nurse, who suggested that she take [X] to a paediatrician to see if there were any psychological issues.  The evidence of each of these parties was given at the trial.

5. Ms C explained that the mother reported to her that she experienced issues with toileting with [X] (refusing to do bowel movements anywhere when he was out), sleeping issues in [X] requiring his mother to remain with him, and the aggression which followed on from [X]’s time with the father.

6. I hasten to observe at this point that the mother was not in any way critical of the father’s care and attention given to [X] and she was completely accepting that the separation anxiety symptoms she observed also occurred in other situations, such as leaving [X] at the day care centre. She also accepted without reservation that [X] could be distressed about leaving the father.

7. The mother explained that she understood from her discussions with Dr M that [X] had symptoms of separation anxiety and that he does not have a separation anxiety “disorder”.  This was confirmed by Ms C who advised the Court that most children up until three or four will experience separation anxiety however to get a disorder is a completely different issue and not likely to be diagnosed with a child that age.

8. Counsel for the ICL cross checked everything that the mother said she had been told by Ms C with Ms C and almost everything that the mother reported Ms C had said, was completely accurate.  One issue that Ms C clarified was that the mother’s view that the child was rigid. Ms C noted that he is not rigid in his approach to everything, but he could be rigid in relation to some issues.

9. The mother’s evidence is that [X]’s separation anxiety symptoms have improved, though not disappeared.  She explained that initially once [X] had spent time with his father his reactions would take 8 to 10 days to settle down.  The situation now is that it takes two or three days to settle down and it is slowly improving.  Ms C said that it will improve as the child matures.  Nonetheless, the mother suggests [X] spend a few hours one afternoon each alternate week with the father in addition to his current time.

10. I accept that the [X] is still experiencing some difficulties of separating from his primary carer, with separation anxiety behaviour issues flowing from this, though they have largely been addressed. The mother in my view has been compliant in following the approach of experts and has even contacted Ms M, another psychologist who has written at length on issues to do with the effect of separation from the primary parent on young children, to find out the expected progress toward overnight contact for a child aged three.

11. Having heard the mother tested about all of her evidence in this regard I am satisfied that she has genuinely experienced the full brunt of [X]’s symptoms explained by her and that she has been trying her hardest to allow the father to have time, whilst herself dealing with the fallout from the separation anxiety symptoms that [X] has acted out at the mother’s home.  When Ms C was asked by the ICL why it would be that the father did not observe the symptoms of separation anxiety at his home, but that it always happened at the mother’s home, Ms C explained that it’s not uncommon for children to behave differently in different environments and what they will do at preschool they will not do at home, and children get into habits in their primary place of residence.  She said children learn a lot of behaviours and they won’t necessarily exhibit the same behaviours in different places.  For instance, [X] would not go to the toilet at day care.  She placed no great weight on the fact that [X] behaves differently at each house.  In this case the child has two homes and separated parents and Ms C agreed that it may make things even more difficult for a child with separation anxiety. 

12. She said that developmentally he is probably reacting according to his age.

13. The mother explained that she has been coping with the symptoms of separation anxiety alone because the father point blank doesn’t believe that [X] suffers any symptoms. She said, “according to Mr Rubin it doesn’t happen. So at the moment I am the one dealing with it.”

14. The mother was accused of being inflexible by the father and this was raised by the ICL in submissions.  I did not get the impression at all that she was inflexible in facilitating time between [X] and the father.  She gave explanations for each of the situations she was quizzed about and I consider her explanations were logical in terms of explaining why she preferred a different date or time to offer the father additional time, when requested to do so by the father.  In relation to an occasion when the father’s parents visited and the father wrote and requested additional time and suggested the 2^nd or the 9^th of April, the mother agreed but she did not accept either of those dates as they were Wednesdays and [X] was at day care.  The mother said she had had a lot of trouble settling him into day care and that she did not wish to disrupt that routine, but instead nominated the following Saturday which was not otherwise the father’s Saturday as that was in keeping with [X]’s routine.  The mother had checked this proposal with the child’s counsellor and her GP before suggesting it to the father.  The mother gave evidence that there had been progress made at day care with [X] moving from the baby room to the toddler’s room. However at the time she noticed he was more needy, wanting to be held more, was more grizzly and this, combined with seeing his father was another period when she noticed his behaviour deteriorating each alternate weekend, following the time that [X] spent with the father.  She said [X]’s reactions had also been noticed at day care by the carer [name omitted] each time she extended day care from one day to 3 days and up to 5 days.  Each step had to be taken slowly to accommodate for X]’s behaviour and his difficulty in coping with more separation from his mother.

15. The mother knew that [X] would have big adjustments in moving to Melbourne and admitted that it would have a huge impact on him and she was well aware of that.  She explained also that [X] doesn’t cope with the smallest routine change, is very stubborn and had a small attention span. The mother was aware that Ms C had observed that it’s possible that this could develop into an ADHD condition.  Ms C in her evidence confirmed that [X] is too young at this stage to diagnose ADHD and she noted that he had a high activity level and that he engaged in rituals in terms of his play.  Ms C said however, that this is best diagnosed once a child gets to school as in preschool or school when these observations are more easily made and the symptoms more easily observed.  Ms C told the Court that she put each parent on notice that they needed to watch the level of activity that [X] engaged in as it may be a precursor for an ADHD scenario.

16. Ms C had earlier given evidence that [X] “was rigid, didn’t like change, he needed stability and that he did not like change a great deal” and he liked to surround himself with familiar items and “worked well in a familiar routine.”  She said this would happen no matter which house [X] would be in.

17. The father went away for a period of time, I think it was the United States, for some weeks and on his return he requested to spend time with [X] outside of the time ordered under the orders. The mother explained that she had little to no notice and that she herself had special friends and family staying with her and she accommodated the time, but not on the precise days that the father wished for it to occur.  The mother said that the problem of the father requesting occasional extra visits had really been that, as happened when his parents were visiting, that he told her some time prior to coming that they were coming and then told her nothing further about it until the last moment.  I accept that the father did leave his requests to the last moment. I note that the father was never challenged about this by the ICL.

18. The mother was also cross-examined by Mr Wright for the father as to two visits at least that the mother had made to Melbourne. It was put to her that she had not organised time for [X] to spend with the paternal grandparents who live in Melbourne. The mother’s explanations were completely rational and I accept that if she flew to Melbourne from Cairns on Friday and returns on Sunday, and that she was doing tasks associated with the death of her father, in packing up his house with her sister, that she would not have had either the inclination or the time to organise visits for [X] and his paternal grandparents who live on the other side of Melbourne.  Similarly, when the mother went to a wedding in Melbourne she was at a location only from Friday to Sunday and in her role as a bridesmaid, she had obligations and tasks to attend to and no time at all to make sure that she contacted the father’s parents to see if they wanted to spend time with the child.  I am not critical of her inability to do this.

19. The paternal grandparents filed affidavits and were present in Court throughout the trial.  The ICL indicated that she had no questions at all for the grandparents and that they would not be required.  There is therefore no evidence before the Court at all that the paternal grandparents were even in Victoria at the time or they themselves were available to spend some time with the child which would have had to be squeezed in between the mother’s commitments with the child.

20. I had a strong impression that the mother is very supportive of the child’s relationship with the father and also with any members of his family.

21. The mother has developed a friendly business type relationship with the father’s partner, Ms D and has no animosity at all toward her. 

22. The assertion of the father that the mother was resisting the child spending more time with him was unsupported by the facts.  The father has not been able to establish that the child “ought” to have been spending more time with him other than was agreed between the parties. As I said during the trial, the only orders made by the Court have been to sanction the parties own agreements.  The mother as the primary carer of this child has had to earn her own living, organise for the child’s wellbeing and day-to-day arrangements, and deal with his difficult behaviour.  I do not accept that she has in any way falsified the distress experienced by [X] in her care.

23. The mother in my view has encouraged the relationship at every opportunity, and I do not regard the parties disagreement about when extra time is to occur (which has happened on about two occasions), as anything of any great moment.  Extra time has always happened.

24. The mother in my view has been correct in her assessment of the state of [X]’s readiness to spend more time away from her and that is borne out by the fact that the child has moved to overnight contact without any great disruption.  The mother continues to put proposals forward about an increase of time.

25. To the credit of the father once he was shown the report from Dr M (which formed part of the subpoenaed material sitting in the Court file for almost 12 months), he was prepared to accept that if the symptoms explained by the mother to Dr M were occurring, that the mother did have a rational basis for regarding [X] as having separation anxiety.  The father did not suggest she was making up the symptoms.

26. I strongly believe that if the parties had attended at Dr M’s rooms together, as the father suggested to the mother, but which uncharacteristically she was not prepared to do, even though she had included him events such as the birth itself and the care of [X] in the weeks and months subsequent to that, as set out in her solicitor’s letter, that this issue would have not loomed as large as it did. Having said that the father conceded that he did receive a letter from the mother in March setting out the diagnosis of Dr M.  It seems that unfortunately this was not sufficient for the father’s purposes.

27. The mother is acutely aware that some of the symptoms shown by [X] may be symptoms of ADHD or high functioning autism but that it is too early to make this assessment.

28. In terms of the relocation the mother was criticised by the ICL for not having her plans in place.  The child is not yet at school and it is the mother’s initial thought at this stage that [X] might be too young to start school next year.  The mother gave evidence of her plans that she would move in with her own mother for about six months whilst she found a place of her own.  The ICL submitted that this was very unstable and that the mother did not know where she would be living or which school [X] would be going to.  The evidence is that the mother will be living in the suburbs nominated by her being closer to the south-east of Melbourne including the [omitted] area.  She explained it was about 45 minutes to an hour from her mother’s house and her mother would help her settle in and support her by providing a home while she and [X] became settled.

29. The mother runs her own business and says some of her clients in her [omitted] business would be following her and she would do that remotely. She had every expectation that she would build up the business in Melbourne as she has done here. In terms of a mental health worker, she said she would look for a mental health worker in Melbourne as she has done in Cairns to help her deal with her depression and that she would ask Ms C to provide a referral so that they could take the file with them to Melbourne.  The mother explained in answer to questions from the ICL’s Counsel that she would find a GP in Melbourne and ask them for a referral to another child psychologist.  This assumes of course that the mother will still need the assistance of a child psychologist if she were to move no earlier than September 2015.

30. The mother was quizzed closely about her ability to pay for the cost of coming back to Cairns four times a year for a week as she proposed and the mother explained to both Mr Wright for the father and again to the ICL’s counsel that she is receiving an inheritance from her late father and it will consist of $10,000 a year and this money together with child support will pay for the cost of travelling to and from Cairns.

31. The ICL quizzed the mother as to where she would be staying in Cairns when she returned and the mother explained that she has an interest in a timeshare unit at [omitted] in Cairns and she will be able to stay there each Easter, June/July, September and Christmas holidays.

1. The mother proposed that until [X] is old enough to travel to Cairns on his own, that she would be accompanying him and that during the week she was here she would look after the clients that she is maintaining. To her current knowledge the mother understood that [X] would need to be assisted with his travelling until he was 13.

2. When questioned if she had thought about making arrangements for the paternal grandparents to spend time with [X] if she moved to Melbourne, the mother said that she had and she thought that it could occur about once a month and should initially start off with [X] spending the day with them until they got used to it and then go to overnights.

3. In terms of how she proposed dealing with [X]’s adjustment to living in Melbourne, the mother said that she uses distraction as a useful tool with [X] and that he will have other children his age down in Melbourne; his cousins and her girlfriend’s children and that if necessary she would engage the assistance of a another child counsellor.

4. The mother explained that she has done the Focus on Kids course and that even in that process she had the opportunity to speak to another mother who had been in a similar situation as herself, that is someone who had not ever been in a relationship with the father of the child and she found it helpful to discuss her particular situation with that other mother.  She also explained that she had learnt about the unique issues of dealing with the parental dynamic through doing the Focus on Kids course.

5. The mother showed her excellent capacity to parent in observing that “[X] already knows how to play the two of us off”, meaning herself and the father and that she has explained this to the father.  She said that she deals with it by saying to [X] when he says to her things like “I don’t have to do that at daddy’s house”, that “this is mummy’s house and mummy’s rules.”  The mother as I noted had already included this in her observations to the father for things to watch out for.

6. Rarely have I seen parents in this Court accepting so openly and willingly that children of separated families are capable of playing one parent off against the other.

7. The ICL asked the mother a lot of questions about the place of changeover with seemingly some concern that it was being conducted at the [shopping centre omitted] car park. I have however listened to the explanation of that location and whilst noting that neither parent is seeking to move away from it, I noted the advantages of being a dry and shady location particularly during the wet season in Far North Queensland.

8. As to the changeovers, the mother explained, as did the father, that they proceed very well and that [X] now jumps out of the car when he sees his father and runs over to him and the father gets him to wave goodbye to his mother.  On the return the mother explained that [X] jumps out of the car and runs over to her to hug her and she has [X] wave goodbye to the father.

9. The mother encouraged [X]’s relationship with the father commencing right from the time of his birth.  Although she had only met the father through a dating agency and had one sexual encounter with him after which time the relationship was by agreement terminated by both parties, the mother nonetheless contacted the father some months later on finding out she was pregnant.  The mother invited him into the birthing suite and the father cut the child’s cord and was the first person to give [X] a bath.  The mother was agreeable to [X] being called [X] after the father, Mr Rubin.

10. The mother invited the father back to her home when [X] was a newborn and he was able to be nurtured and cared for by the father in the presence of the mother.

11. With all of these fundamental issues being addressed by the mother and noting that the orders for time between the child and the father have always been by consent, I place little store on the fact that the parties have had disagreements on about one or two occasions about how extra time is to be managed.  I disagree with the submission of the ICL that the mother has not been flexible and in my view the decision she made about how any extra time should be made up has been child focused and not in any way intended to deprive the father of spending time with [X].

12. The communication book exchanged between the parties is a good illustration of the parties’ maturity and respect of each other as individuals and parents.

Mrs B, the maternal grandmother

1. Mrs B gave her evidence by telephone and was cross-examined by each of the other parties.

2. She gave the impression of being a very candid, friendly and caring grandmother who was hard-working. She is aged 57 and works as an [omitted] commencing work at 6:30 am, and she is not home till 5:00 pm. 

3. She is living in [omitted] at the moment with her other daughter [Ms E] as she is in between houses with a new house being built for her commencing in January/February and intended to be finished by about April 2015.  She understood that if the mother moved back to Melbourne, that she would be staying with her for some months whilst she got sorted and that she would then eventually move to [omitted] area as she likes the other side of town.  She explained that the mother was “welcome to stay with me” until she finds out where she wants to go.  The maternal grandmother accepted that whilst she would provide accommodation for the mother, she was not in a financial position to assist her with any lump sums or other funds.

4. She explained that her daughter [Ms E] and the mother had issues in the past but that when they are both together at her home those issues are set to one side.  Whilst the mother and [Ms E] do not get along all the children go to her home and enjoy family celebrations such as Christmas.  The mother gets on well with [Ms S], her other sister. 

5. The mother had previously explained to the Court that reason she left Victoria was that her long-term boyfriend ultimately commenced a relationship with her sister [Ms E] and she felt somewhat betrayed by that.  That was 10 years ago and in that time [Ms E] and her former boyfriend have remained together and had a family of their own.

6. The mother also explained that during the last few years in Cairns that she had a boyfriend called Mr K who it seems came from Melbourne.  Initially, that was one of the reasons that she would have wished to relocate to Melbourne however it had never been the sole reason. I accept that this is so.  Unfortunately Mr K moved to Cairns for a period and whilst in a seemingly de facto relationship with the mother, he swore an Affidavit saying that he intended to be in a long-term relationship with the mother.  Sadly, this was not to be the case as

   
   

   Mr K then took up with the mother’s best friend and that as the mother says she lost not only her boyfriend but also her best friend.  The mother’s father also passed away in 2013 and I gather that he was separated from Mrs B by this stage.   

Ms H, the Mother’s mental health nurse

1. The mother saw her GP initially, Dr K, who referred her to regular support from Ms H. Ms H is well qualified to provide support to the mother and I found her to be very professional and seemingly good support for the mother.

The father

1. The father presented as a quietly spoken and very thoughtful man. 

2. He initially heard about the unexpected pregnancy, the mother, with whom he has had almost no relationship save for one sexual encounter, following an introduction through a dating agency. I understand that he had a period where he was trying to determine the level of his involvement and future commitment. I am satisfied however that once he determined that he would be involved in [X]’s life that he has been true to his word and given his heartfelt commitment to [X].

3. [X] is the only child for both the mother and father who are each now in their forties. The father does not have any other children and explained to the Court that it is unlikely that he will have any further children.  As I said to each of the parties at the end of the trial, whilst they found themselves in a very awkward situation with news of the pregnancy, it has for each of these parties turned out to be the best news they could have ever had as they have a beautiful son as a result of that one-off date.

4. The father was not cross examined by the ICL about any of the correspondence which he had sent to the mother whilst being legally represented by his first solicitor. The ICL submits however that the correspondence is inexplicable and demanding in nature.[2]

   [2] Exhibit ICL 5. 

5. The letter from the father’s first solicitor on 10 July 2013 to the solicitor for the mother is an example of the tone of the correspondence.  It states as follows:

   “We refer to your letter of 16 May 2013 and advise that we shall respond to that in detail in due course.  None of the allegations contained therein are admitted.

   We had an interview with our client on 9 July and respond to your letter of 4 July as follows:

   1. We take note the father attended an appointment with Dr [omitted] for a check up.  The parents agreed that both would attend appointments where possible.  The father does not recall completing a form but he may have done.

   2. We confirm that the mother has via your letter, informed the father the details of the child’s doctor five months after she started using that practice and then only after a solicitor’s letter was sent.

   On 9 July our client contacted the [omitted] Family Practice and spoke to “[first name omitted]” twice.  He advised that he was not listed as an emergency contact and was not authorised to obtain medical records.

   Please explain in writing within seven days why our client is not listed as an emergency contact as your letter of 4 July 2013 clearly states.

   3. On 31 January 2013 the parties attended a mediation at the Family Relationships Centre (FRC).  The Mother disclosed that [X] had a bad reaction to the medication.  She explained that a test was needed to confirm this but it was necessary for [X] to be admitted to hospital overnight so the test could be conducted.  The mother has declined to have the testing done. 

   We ask that she confirm that she has not done so and her reasons for that, including any medical advice she was given at the time. 

   Our client was concerned that the child was suffering mosquito bites which were itchy.  He used T tree oil [sic] which relieved the itch.  The itch was relieved and there was no adverse reaction.  The father felt competent to read the label and ensure there was no penicillin in the T tree oil [sic].”

6. The letter which is some three and a half pages continues later:

   “5. We note that [X] suffers from insect bites.  The father has queried whether these may be flea bites as the mother has a dog inside.  The mother has indicated that they are mosquito bites. 

The mother has previously indicated via your letter of 16 May 2013 that she is concerned that [X] may be exposed to Dengue Fever.

Given that there are two current Dengue Type 1 outbreaks cover [omitted] (and other) areas, we ask that the mother study and consider the Queensland State Government website at

Clearly it is not in the interests of the child to be such [sic] risk. 

We seek an assurance within 7 days that the mother has prepared a Dengue Plan covering:

a.Prevention and breeding;

b.Insect Screens on doors and windows;

c.Ensuring the inside of the home is mosquito free;

d.Appropriate insect repellent; and

e.Ensuring the Child Care Centre and other places attended by [X] are “Dengue Compliant”.

6. Who has diagnosed the child as having separation anxiety?  Please forward a copy of the diagnosis without delay.  The father is most concerned that [X] has some issued and he has not been consulted.”      

1. And so the letter continues. 

2. I regard the tone of the letters sent by the father’s solicitor to the mother as being hostile, demanding and overbearing. I was satisfied however that the father is not the person portrayed in the letters. The ICL submits that neither the mother nor the father is the person portrayed in the correspondence being exchanged between the father’s first solicitor and the mother’s solicitor.  The correspondence in my view says more about the authors of those letters, than it does about these parties.

3. The father seemed willing to make admissions against his own interest.  He did believe that the mother had not given him the time he ought to have had, however as I’ve said there is no standard or benchmark established in this case that the mother ought to have adhered to.  I’m not sure where the father got the notion that he was “entitled” to have overnight time earlier.  What he ought to accept is that the transition for [X], notwithstanding all of his behavioural difficulties, has been managed seamlessly. That would suggest to me that the mothers proposals, which the father says now he had to go along with were correct and child focused. I do not accept that the father did not have a voice in the consent Orders, as he was legally represented. If he did not agree with the times set out in the Consent Orders which were agreed upon following a Child Inclusive Conference, he ought to have indicated that to the Court instead of indicating his agreement.  His issue should be pursued with his former solicitor, not raised as a criticism of the mother.

4. Nonetheless I found the father to be an impressive witness and importantly I consider he had much to offer [X].  The father is a [occupation omitted].  He seems dedicated and committed to [X].  He validly complains that he was not permitted to go to the appointment with Dr M, paediatrician.  I accept that he wants to be involved in the decision making with [X]. The father has a quiet confidence about his parenting.  I had the impression that he has a different relationship with [X] than [X] has with his mother and that it is and will be a very positive experience for [X] to develop and build his relationship with his father.

5. I accept that the father’s work here is beneficial both professionally and financially for him and I accept that it would be less than desirable for him to relocate to Melbourne and attempt to find similar work.  It’s possible that he could do so and I accept that if he did it would likely mean that he would be an [occupation omitted] earning about $40,000 a year less.

Ms D, the Father’s partner

1. I was equally impressed with Ms D, the father’s partner, who comes from Tasmania and has chosen to live in Cairns.  Ms D dismissed the idea out of hand that they could move to Melbourne.  It is a position that a non-resident parent has the luxury of adopting.

2. Ms D very wisely has supported the father from behind the firing line and has not placed herself in any of the frontline positions in terms of making decisions about [X] or agitating issues with the mother. Quite the opposite is the case.  Ms D has indicated that she has a friendly enough relationship with the mother and she is more than happy to have [X] spending time with herself and the father. She described [X] as a “cute little boy who enjoys putting plants in the garden… we have fun, tickle, play, we go on excursions, we have quite a nice time.” Ms D said that they do not have any issues when [X] stays with them.  He sleeps in his own room, sometimes he wakes up and the father tends to him.  She said they had a pleasant transition to having overnight time.  She explained that she briefly met the mother and that whilst they don’t have a lot to do with each other, there has never been anything nasty or uncomfortable between them.

3. She explained that she left Tasmania and has lived in Cairns five years and loves living here and would not contemplate moving to Melbourne, that it’s too cold and not a place that she would like to live.  She used to work with the father and once she left that work, they started up a relationship.

4. She explained that at age 41 it was unlikely that she would be having any children of her own.

5. I found Ms D to be an impressive witness exuding warmth and sincerity. I consider it will be beneficial for [X] to have the father’s partner in his family circle.

Ms C

1. Ms C gave evidence as directed by the Court as referred to by me elsewhere in these Reasons. Ms C was an impressive witness whose evidence was thoughtful, comprehensive and most helpful to the Court. I accept her evidence and recommendations as being in the best interest of [X].

Mr P, Family Report Writer

1. Mr P gave evidence that the mother’s application was pre-emptive in that [X]’s relationship with the father is still only unfolding and it needs further time to consolidate.  He notes that the father started overnight time with [X] one night in April this year and that all things being equal, [X]’s time with the father should continue to increase at a steady pace.  He has seen all of the material from [X]’s day care as to his progress and been told of the evidence of Ms C.  He believes that the single biggest issue as to whether or not [X]’s relationship will continue to be consolidated is the ability of the parties to get on together.  He noted that [X]’s sense of attachments, sense of identity would all be enhanced in the preferred situation of both parents living in reasonable proximity and on the proviso that the parents are cooperating well together. 

2. Whilst reluctant to give proscriptive plans about the nature and timing of specific contact arrangements, Mr P used as a marker the fact that the child is developing well and that for a child this age frequent contact is more important than the duration of the contact.  He suggested that rather than adding an extra night each fortnight, it is preferable to add in shorter periods during the week that [X] may not be seeing his father.  

3. In terms of the relocation, Mr P stated initially that he was most surprised that these parties were actually having a trial as it was very much his impression when he prepared the second report, as is indicated in the second report, that everything had settled down; the mother had decided that she was not going to relocate; she had come to grips with that situation; her family had said that they would travel to Cairns more regularly; her demeanour was improved and that he was most surprised that relocation had come back on the agenda.  He explained at the second report that both parents were reporting positively about their own lives and the life of [X].

4. Consequently Mr P was somewhat perturbed as to the mother’s motivations for now wishing to relocate again.  He indicated that it is very hard to predict what adjustment would be involved in terms of [X] adjusting to his new circumstances in Melbourne and said it would be just speculation.  He indicated that overwhelmingly it is the quality of the parental relationship which speaks to the stability for the child.  He noted that children are always subjected to these sorts of changes and they will always do better when there is a lot of support for the situation.  Mr P was of the view that any arrangement involving [X] continuing the relationship with the father would need to enable the maximum contact visits and that it would be essential to supplement physical visits with use of today’s technology such as Skype. 

5. In terms of each of the mother and father, Mr P said that in the first report he did not get a sense that the mother really valued the relationship between the father and child, but that it was a work in progress.  If there had been consolidation and improvement of the parents relationship between now and September when the mother proposed going, he indicated that would be the single biggest predictor of [X] being able to make this transition successfully.  He said the Court needed to be satisfied about the bona fides of the mother in terms of her desire to move.

6. Mr P expressed some general apprehension about the prospect of relocation. This was generally in terms of the ability of the parents to cooperate and if their positions were highly entrenched and were not going to improve, this would not bode well for the viability of a meaningful relationship between the child and the father.  He emphasised that for relocation arrangements to be sustainable each of the parties need to demonstrate a good relationship between themselves and also an ability to show some flexibility in arrangements. Mr P noted that when a child lives a significant distance away from one parent, it is often necessary for flexibility to be shown in relation to the changing of circumstances.  He stated that it was also necessary for the parties to be able to demonstrate that they are child focused and flexible.

1. The father appears to be a well-educated man and his characteristics of being thoughtful, softly spoken and sincere have also been observed by the Report Writer, Mr P.

2. I am satisfied that these are two very good parents.  The mother is perhaps more cautious about making changes to [X]’s arrangements because of her own experiences with him.  The father on the other hand, who has a very quiet confidence about him and who is obviously competent in his professional life, has much to offer young [X] in terms of a male role model.  

3. The mother’s openness and commitment to [X] and her friendly outgoing demeanour will also stand as a good influence in terms of [X]’s future development.

4. In the event that [X] does have issues with his high energy and some of his ritualistic behaviour which manifests into ADHD or some variation thereof, I consider that each of these parents will be competent in the decision-making that they together would make about [X]’s long-term issues. I also consider that the regular involvement of the father in having physical time with [X] would be of significant benefit to [X] in the long term, and particularly so if there are future manifestations of his current ritualistic behaviour or any other behavioural difficulties.

5. The issue of schooling was raised, more by the ICL than either the mother or father.  The mother it seems had sent the father an email days before the trial, raising her thoughts about [X] perhaps not starting school in 2015 but deferring it until 2016.  There had been no opportunity for these parents to have any meaningful discussions about the issue, though there were various questions raised in cross-examination of both the mother and father.  The father did not see that [X] had the same immaturity or that he was lacking in emotional maturity to commence prep school next year.  The mother had some reservations about him being too young and that he might be too young all the way through school and she considered that he is still emotionally immature.

6. Ultimately Ms C gave evidence that she had been approached by the mother as to whether or not [X] is ready for school.

7. The father had also organised for an appointment with Ms C for himself and Ms D, and was described by Ms C as someone who was not dismissive of the issue of the possible separation anxiety.  She described the father as being slightly defensive initially but that he quickly relaxed and was warm and open.  I agree with the observation of Ms C. 

8. Ms C explained to the Court when asked that she is not an educationalist and it is not really her field to make recommendations about whether or not the child is ready to commence school. However Ms C gave the parties the benefit of a formula for ascertaining whether or not the child would be ready.  She suggested that the parties speak with the day care centre and then that they make an appointment at school and discuss the issue with the school authorities and that they would make their own observations as to whether or not [X] was ready to commence school.  With those qualifications Ms C said that she saw no reason having looked at the day care records in relation to [X]’s observations to suggest that there was any reason why he would not be ready to commence school next year commencing with prep. 

9. Between the mother and father given the mothers sensitivities to [X] and the father’s different experience in parenting, his quiet confidence and slightly more robust but thoughtful parenting, I consider that it will be to [X]’s benefit to have the involvement of both of his parents in this and other long term decisions.  As between the parents they represent two minds each bringing their own perspectives, which together will result in decisions which will enable [X] to achieve his full potential in life.  I consider that the father’s regular contact as provided for in his proposal, allows him to be informed and engaged with the mother. 

S.60CC(3) The additional considerations are:

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. [X] is too young to express a view as to his long-term arrangements.

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. I am satisfied that [X] has a strong bond with his mother and that he has a loving and strong relationship with his father which is going to improve incrementally in the future.

2. I am satisfied that he has a happy relationship with Ms D and that she is entirely appropriate in her involvement with [X] and that she is genuinely committed to offering [X] happy times in her household.

3. I am also satisfied that Mrs B is a loving grandmother who has made significant efforts to regularly come to Cairns at least twice a year on average. I have not had the opportunity to see the paternal grandparents as they were not required for cross examination, however I have no doubt whatsoever that they are like Mrs B, loving and adoring grandparents.

4. The father explained that he travelled to Melbourne about once a year for a period of two weeks and that in that period he and his family generally went camping for about six or seven days.  Whether [X] lives in Cairns or Melbourne, these are the types of opportunities that I would see the father offering [X] which are likely to enrich his life and increase his life experiences.

S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

1. To participate in making decisions about major, long term issues     in relation to the child; and

1. To spend time with the child; and

(iii)  To communicate with the child.  

1. Each of the parties has taken every and all opportunities to be involved in [X]’s life. The mother’s life has been severely impacted upon in terms of her many hours spent having difficult times with [X].

S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

1. In my view each of the parties have complied with their obligations in terms of parents to their full extent since [X] has been born.

S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. In this matter the consideration of the likely effect of the changes for [X] which flow on from the mother’s relocation proposal are most significant.

2. I have already touched on the issue of [X] seeing considerably less of his father on four occasions each year rather than spending his life literally growing up with his father and mother in Cairns.  The move to Melbourne is a significant move and involves introducing a distance of some 4,000 kilometres between the mother’s home and the father’s home. Whilst I have no doubt that the mother is very competent parent I know that she has struggled with difficult behaviour of [X] in the past.  She will no doubt get professional assistance in Melbourne as she has organised in Cairns, however, I am satisfied that she will not have more family support on a day to day basis.

3. The maternal grandmother would do all that she could I am sure however she does have a busy life and the mother will for her own reasons, not be living in very close proximity.  Her sister and her children are an hour or so away and on a day-to-day basis I have the impression that it will very much be [X] and his mother as the family unit spending time when they can on weekends with other members of the family.

4. The single biggest impact of change for [X] in moving to Melbourne in my view would be the absence of his father. This is a significant change for [X] from being able to spend the regularly occurring time that Mr P suggested was appropriate for young children such as [X].

5. The other significant issue is the long passage of time between the visits.  Mr P noted that a fortnight is a long time for a young child in between visits from one parent to another.  The period of time during which [X] will spend no time with the father will be months at a time, going from Easter to June/July and September/October and then Christmas. Significant periods without contact with the father is contra indicated for a child of [X]’s age according to Mr P.

6. This is a significant factor in terms of [X]’s ability to have a meaningful relationship with his father. It precludes regular and frequent opportunities to enjoy a physical relationship with his father and to enjoy the father son relationship which the father could provide to [X] if the father and [X] lived in the same town.

7. The mother’s proposal will see [X] growing up in Victoria and literally spending only holiday time in Cairns. The amount of time each year that [X] has to spend with the father is considerably reduced. I might have expected to see a proposal from the mother for [X] to travel to Cairns and spend four weeks at Christmas, all of Easter, two weeks of the school holidays in June/July and two weeks in September, however such proposals are financially impracticable and too draining to be sustainable. It is also an impractical arrangement also because the father does not have time off work for any more than four weeks a year and not 12 weeks a year as might otherwise have been the case if finances permitted it.

8. It is speculative as to how well [X] will cope with such a significant change. I note the mother’s own evidence that [X] has been very rigid in terms of adjusting to changes generally and to changes in his routine.  Whilst the move to Melbourne would have one constant, that being that [X] would remain living with his mother, there are significant other issues that would change in his world.  His day care centre or school will be changed, the familiarity of Cairns and his tropical lifestyle in the Far North would change, he would lose his current friends in the community, and most importantly he would lose his opportunity to spend regularly occurring time with the father who I consider has so many qualities, attributes and love to offer [X].

9. I place significant weight on the effects of the likely proposed changes in terms of the mother’s relocation upon [X].

S.60CC(3)(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

1. I find that this is one of the most pressing issues for determination in this matter.

2. In terms of financing her proposed visits to Cairns on four occasions each year, the mother’s income would make it a very tight situation for her to be able to afford after she has paid her rent and all the normal cost of living.  I am basing that on her earning the $36,000 or so a year that she currently earns.  In reality it will take her some time to build up her client base again.  The mother says that the death of her father recently has resulted in her receiving $10,000 per annum from his estate for the next four years.  Mr Wright says there is no evidence of this however the evidence is unchallenged and it is the oral evidence of the mother.

3. She has not been given a notice to produce the Will or requested to produce any other documents substantiating what she has said.  I found the mother to be a very honest witness as is the father.  I accept her evidence that she will be receiving these funds.

4. On the face of it the $10,000 would be sufficient funds to travel to and from Melbourne four times a year for two people and it will be needed to pay for all of these flights.  Experience tells me from hearing many relocation cases involving travel from Cairns to other destinations that the cost of tickets will at least be $500 for the combined cost of herself and [X] to travel to Cairns and another $500 to return at minimum. On that rough estimate, $4,000 a year would be required.  Her plan of course means that this amount would need to be left untouched, in the face of other financial pressures.  The mother says that she has a timeshare and she would be to borrow a car from a girlfriend.

5. The mother has put some thought into how these arrangements could be made. It would be fair to say the Court would be much more concerned about the financial sustainability without the $10,000 per annum for the next four years.  Having said that I do not underestimate the difficulty involved in regular travel and the unexpected events that can occur from delays in flights, cancelled flights, sick children and so on.

6. Mr Wright for the father submits that the father is concerned that the mother has had trouble getting [X] to go to day care on certain days and that at times she has given up because it has required her to drag him kicking and screaming into day care.  He submits that the mother may find difficulty getting [X] to get onto a plane and if this happened the proposed arrangements would collapse.  The period when the mother was having trouble getting [X] to day care was when he was going through separation anxiety.  It is the mother’s evidence and that of Ms C that this is normal for three or four-year-old children and that they grow out of it.  I do not place any great weight on the concerns of the father that the mother would not be able to get him on a plane when he is aged six or older as he is well past the age expected of a child to suffer from separation anxiety.  Also, when getting onto a plane with his mother, he is not being separated from her in any event. 

7. The issue that I consider relevant for [X] is the importance of the father having the opportunity to have regular physical involvement and regular opportunities to spend quiet intimate times with [X].  [X] is obviously a child with significant energy and despite the difficult behaviours exhibited by him with the mother and the distress she has observed, there is every sign that [X] does not have that difficulty with his father and that he has a different relationship with him.  [X] is very fortunate to have a loving and caring mother who is attending to his every need. The opportunity of the father to have that same close physical, emotional and intellectual connection with [X] through direct and regular time and parenting [X] each week, each month throughout school semester and holidays together is in my view a distinct advantage in the arrangement proposed by the father.  This proposal of the mother for [X] to have a long distance relationship with the father through the use of technology and physical contact four times a year for a week in Cairns is in my view will result in a much less close and personal father/son relationship.  This is particularly so for young [X] who clearly has had some difficulties with separation anxiety, and who has high energy and who may even have issues with ADHD.  The father says he spends a fortnight holidaying each year in Melbourne which notionally could be spent with [X], however, the reality is it is not possible for the father to have anything further than his four weeks each year of annual, whether it is in Melbourne or Cairns.  Therefore if he does take two weeks off and go to Melbourne and spend those two weeks with [X] and his family, that leaves only two weeks remaining for the 12 month period that he has annual leave.  

8. I consider that the proposal of the mother for the father to travel to Melbourne at any other time is more imagined than real as the practical reality is that the father, other than for a long weekend, would have little opportunity to travel from Cairns to Melbourne and Melbourne to Cairns outside of his annual leave.  Such times would be restricted to short visits possibly occurring once or twice a year.  I do not consider that this type of time spent between the father and [X] would be as enriching or rewarding for [X] as having the benefit of his father, who I consider has much to offer his young son both now and well into the future, in his life on a regular basis from week to week.  The advantage of the father’s proposal is that not only will [X] have his father in his life from week to week but he will also have the benefit of having his mother and her love and support also week to week.  I regard this possibility as a significant advantage of the father’s proposal.    

S.60CC(3)(f) The capacity of each of the child’s parents; and 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

1. In terms of her capacity to parent I accept that the mother is an excellent parent and that it has not been an easy road for her terms of coping with [X]’s very challenging behaviour.  She has also had to cope with the incidents referred to of much disappointment; relationships breaking down and the loss of good friends as well as the grief associated with the passing of her father.  Sensibly the mother has been seeking assistance from Ms H, her mental health nurse, who gave evidence at the trial.

2. In terms of the father’s capacity to parent, I am satisfied he is 100% dedicated to [X] and that whilst he has not had the flying hours of parenting that the mother has, I have no doubt that he will continue to be a sensitive and caring parent.  The mother herself has no issues at all with the father’s care of [X].

S.60CC(3)(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

1. I have nothing to add under this section. 

S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right

1. The child is not a child of Aboriginal or Torres Strait Islander heritage.

S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. In terms of responsibility towards parenting I am satisfied that the mother is a most responsible parent and that she has made excellent choices in terms of [X]’s living arrangements, day to day arrangements, health care requirements and specialist treatment where necessary.  I am satisfied that she is most competent to provide for [X]’s emotional and intellectual well-being.  The father has shown that he is a responsible father and that he would like to be more involved in decisions made regarding [X].  I consider it an advantage to [X] to have the hands on involvement and the benefit of both parents being actively involved in his life.  Each parent has shown they have a child focused attitude and the capacity to be involved in the responsibility of parenting. 

S.60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. In terms of family violence and family violence orders, this is one of those rare matters seen in this Court where there are no issues of family violence. 

S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

1. the circumstances in which the order was made;

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

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

1. any other relevant matter. 

1. Not applicable. 

S.60CC(3)(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

1. Neither the mother’s or father’s orders are more or less likely to lead to further institution of proceedings.  The orders the Court intends to make are final orders and any party seeking to alter these orders, in the absence of consent, will need to cross the legal threshold as referred to in Rice v Asplund.[3] 

   [3] (1979) FLC 90-725.

S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant

1. In terms of the issue of the mother’s reasons for relocating to Melbourne, I am mindful of the relevant case law and that the mother does not have to provide any compelling reason for her desire to relocate.  Nonetheless, the Court must be satisfied that the move is not a move done in bad faith as it were.  I am satisfied that the mother’s reasons for wishing to relocate are genuine and that she suffered a lot of sadness and disruption to her personal relationships in recent times and that she has a genuine desire to return to Melbourne where she grew up and lived up until she moved to Cairns in 2004.

2. In terms of the broad support that she will have in Melbourne, she will certainly have family members available to her such as her mother and sister and her sister’s children. I accept though that whilst the maternal grandmother works long and hard five days a week that it is unlikely that there will be much time spent together during that period if they live 45 minutes or so away from each other.  However, I also accept that having the closeness of family around in Melbourne provides much more support for the mother than having no family at all in Cairns.

3. The ICL submitted that the mother has plenty of support in Cairns and pointed to her GP, the child’s counsellor and her psychiatric nurse.  I do not really regard these professionals as providing the social and family support that the mother is seeking in Melbourne.  I have no doubt that the mother will competently find another GP, another counsellor for the child if that was necessary and another other mental health worker.

4. I accept the submission of Mr Wright for the father, in answer to the mother’s evidence that she has no friends in Cairns, that once [X] commences school, typically she would be making friends with the mothers and fathers and families of [X]’s school friends. Sometimes such friends can be friends for life.

5. The mother seems to be a friendly outgoing person with a genuine warmth about her and this was more evident on the second day that the mother was in the witness box, when she was obviously more relaxed.  I noted her comments when asked by the ICL as to whether she saw any benefit in the father attending at day care to collect [X] for the proposed additional afternoon, the mother replied with a beaming smile that the benefits of [X] was that “he wants to show daddy off to all the other kids, he hasn’t had an opportunity to show all the other kids his dad.”

6. I note also that the mother had invited the father and his partner Ms D to the graduation from kindergarten and that she said “I let them know it was on and they came.”  The mother said she had no difficulty at all with the father’s partner Ms D and that she was part of [X]’s extended family.

7. The mother said that outside of the issues of relocation and separation anxiety she and the father get along fine.  She explained that we are not going to agree on everything but we have been pretty good.

8. The parents themselves are impressive people, who have shown respect for the other parent, apart from the issues they seem to get bogged down in with the relocation and the father finding it difficult to accept that his time ought go more slowly than he would have wanted (which seems to be said more in hindsight than was ever ventilated through the Court system), these parties in my view are working very well together.  This is of significant benefit to [X].

S.61DA - Parental responsibility

1. The mother’s initial application was for sole parental responsibility.  It is not clear to me what the basis of that would have been except perhaps that making joint decisions with one party living in Victoria and the other party living in Cairns and having much less understanding of the child’s day-to-day well-being, may have led to contemplation of an order for sole parental responsibility.  However the mother’s subsequent amended document sought orders for equal shared parental responsibility and they are the orders sought by the father.

2. In my view each of these parents has so much to offer [X] in their own way that overwhelmingly, it is in his best interests to have each of his parents making joint decisions for long-term issues.  I am also satisfied that these parties well and truly have the capacity to do so.  As I’ve said one only needs to look at the entries in their communication book to see the respectful courteous exchanges between the parties.  I note also that they are encouraging of the other in their joint endeavours to raise [X].  It is very clear to me that each of these parties want what is best for [X].

3. When an order is made for equal shared parental responsibility, the Court is required to consider equal time or if not equal time, then significant and substantial time between [X] and each of the parents.

4. The parents themselves have agreed with the way forward for [X] in the event that [X] remains living in Cairns.

5. I do not intend to interfere with that proposal and it does not include week on/week off until a certain point in time.  Each parent is accepting that [X] is not yet ready for an equal time arrangement, but the parties have now agreed to an incremental increase in the father’s time in the event that orders are made for the child to remain living in Cairns as set out in the proposed orders.[4] It is proposed by each of the parties that [X]’s time be accelerated by a day each week each year culminating in an equal time arrangement from January 2019.

   [4] Exhibit ICL 11.

6. I am satisfied that at the present time it is appropriate for [X] to live with the mother and spend significant and substantial time with the father as set out in the proposed arrangements[5].

   [5] Exhibit ICL11.

7. In terms of the mother’s primary proposal, it is not possible to do equal time or significant and substantial time on a regular basis, given the tyranny of distance and the cost of travel.  The mother proposes as I have said one week four times a year and that the father can spend time with [X] any other time he can get to Melbourne on 14 days notice. That proposal is really the minimal amount of time that [X] would be spending with the father however in my view the likelihood of him spending any other times is really restricted to one or two weekends a year which would happen with the father flying to Melbourne for a long weekend. 

60CC(2) The primary considerations are:

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

1. In terms of the primary considerations, I have no evidence that either parent has exposed the child to domestic violence, abuse or neglect.

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

1. I am satisfied that it is in [X]’s best interest to have a meaningful relationship with each of his parents.  It is this aspect of this finely balanced matter that is quite determinative in making final orders.   The father in this matter has been, in my view, a caring, concerned, committed father.  His one drawback has been the over bearing tone and demanding and accusatory nature of the correspondence written on his behalf to the mother.  Through the evidence given in this matter and my own observations of the father under cross examination, I am satisfied that he is not the person depicted in the letters written on his behalf.

2. All of the father’s conduct is entirely at odds with the tone and purpose of the letters written to the mother. The high point of his absurd requests must surely be the “implementation of a Dengue Plan”, which also required the mother to ensure all other places the child attended were “Dengue Compliant”.   As to his relationship with the child, he has solidly complied with the contact arrangements and where necessary offered help to the mother when she has needed it, such as when she had her operations.  The father has without complaint driven to different locations or helped the mother out.  The mother has likewise, been mindful of engaging the father in day care ceremonies, and she has warned the father that young [X] is already trying to play one parent off against the other.  The parents have supported each other in their respective endeavours.  This would never be gleaned from the contents of the legal communications.

3. I consider that the father and mother have much to offer [X].  The father’s regular involvement in decision making and, equally as importantly, in the weekly activities of [X] including his schooling, his sport, his activities, his friends and in all aspects of his life, is in my view a significant advantage of the father’s proposal as opposed to the proposal of the mother to relocate. 

4. The mother’s proposal restricts this possibility and introduces in its place a parenting regime where the mother will be a solo parent and the physical time between [X] and his father will be occurring four times a year, for a week at a time.  I consider there is little opportunity for much else to occur between the father and [X], given the father’s work commitments, and given the distance of 4000 kilometres, cost and time for travel between Cairns and Melbourne.

5. [X] has the opportunity to engage in his father’s family circle whilst living in Cairns, as well as his mother’s.  The mother has indicated that her relatives, primarily it seems to me her mother and sister [Ms S], have indicated that they will travel to Cairns more often and help the mother travel to Melbourne with [X].

6. The behaviour that [X] has displayed with his mother has been challenging and has not yet resolved.   The father for whatever reason, has not had these same issues with [X].  As explained by Ms C, children respond differently to each parent and to different locations.   I consider that [X]’s response to his father’s influence is extremely positive for [X] and that continued and regular involvement of the father will enhance [X]’s life.  This is not possible on nearly the same level, when it is to occur as set out by the mother, four times a year.

Discussion

1. In terms of the submissions made to the Court on behalf of ICL that the mother has not been flexible or that she has not been cooperative I do not accept those submissions.  In terms of the submissions that the mother might not be able to get the child on the plane in the future years ahead I also find that submission is without any solid factual basis and does not account for the timing and nature of previous difficulties in terms of getting the child to day care.  It is out of context in my view to make this suggestion.

2. I accept the submission of Counsel for the ICL that it is rare to come to this Court and see two parties who have been in such a fleeting relationship, absent the issue of relocation, who have been able to work together and be supportive of each other and respectful to each other, when left to their own devices.

3. In my view save for the issue of the mother’s relocation and the subsequent war of lawyers letters which commenced, these parties would have dealt with issues to do with the separation anxiety if each party had been involved at every step.

4. I accept the mother’s evidence that given the load that the parenting of [X] has involved at times, that she enjoys timeout when [X] is spending time with father.

5. I accept that the father made financial contributions of around $3,000 on hearing that the mother was pregnant in order to offer financial support.  I accept that the father has assisted the mother at times when she has had operations referred to in the material and she has not been able to drive.  I also note their mutual respect for each other and high regard for each other as seen in the communication book.  I note the respectful dialogue and obvious acceptance by Ms D of the role of the mother in [X]’s life and her appropriate relationship with [X].

6. The father and mother have cooperated to ensure handovers occur even when the mother has slept in, and the father has travelled extra distance without any complaint.

7. The mother has involved the father as I have said at every step of the birth, post birth, agreed to the child’s middle name being the father’s Christian name of [omitted] and agreed to the child’s surname being the father’s surname Rubin.  She has in my view been a child focused mother who has had difficulties with [X].  She has tried to navigate her way through some of the overbearing demands as seen in the father’s solicitor’s letters, while still encouraging the relationship.  The father has been prepared to admit when faced with the evidence of Dr M who considered that [X] has had separation anxiety, that the mother did have cause for concern.  He also accepted that this being so, his requests for extra time may have been misplaced. 

8. In my view this matter is not a matter about a parent obstructing contact or the mother being inflexible.  This is a matter about two very good parents who found themselves unexpectedly being parents and have nonetheless managed to maintain a civil and respectful relationship.  Mr P says this is the single most significant factor in making child arrangements work.  I have no doubt that these two parents will take the advice of the experts and work out an appropriate start date in terms of [X] schooling.

9. In terms of weighing up the advantages and disadvantages of each of the parties proposals, I consider that this is a finely balanced matter.  I have explained to the parties that relocation cases are difficult matters for judges all around the world.  Inevitably one party is devastated when the outcome of the litigation is announced.

10. In terms of the mother’s depression, I note that she is managing and that at a point in time as seen in the evidence of Mr P, she had come to grips with the relocation.  Moreover she explained to Mr P as recently as August this year that she was not planning to relocate to Melbourne now.  The mother said she remained friends with her former boyfriend Mr K that she was still taking her medications, she was sleeping okay, her moods were okay and she added.  She had no black periods, nor was she overly worried about things or depressed.[6]

    [6] Paragraph 22 of the Family Report. 

11. In what I would regard as the mother’s honest and heartfelt communication with the father, she wished to point out to Mr P that she wanted to clarify one thing.  The mother said that, “Mr Rubin said in the report that I hated him… But that’s just not true.  Mr Rubin has given me a beautiful boy… I just get frustrated with him for not listening to me but I think things haven’t changed that much either.”

12. The mother concluded that “I’m settled in myself and with my life.  I’ve been assured that my mother and sister will come up more often for visits to Cairns.”  She added and “they will help with flying [X] and myself down for visits to Melbourne too.”

13. If the mother’s evidence is correct, that she does not have many friends in Cairns, it is surprising that this is so given that she had been living here now for 10 years.  I do anticipate though that once [X] starts school that, as submitted by Mr Wright, the mother will find herself with many other mothers and fathers and families being the parent of this young school-aged child and there will be plenty of opportunities for friendships to be made. 

14. In my view, in terms of each of the parties proposals there are distinct advantages to the father’s proposal for [X] to live in Cairns and spend time with both himself and the mother as proposed.  The single biggest advantage in my view is the opportunity for young [X] to have both his parents involved in his life on a week to week basis.  The mother has had her difficulties with parenting and in my view she is going to get significant support in that parenting by remaining in Cairns and having the father play a significant role in the day-to-day arrangements and raising of [X].  Moreover, the father’s proposal enables [X] to have a physical and close relationship with this much loved father and mother. 

15. Also, the father’s proposal allows [X] to have the benefit and wisdom of personal close child raising not just by the mother, but importantly by the father as well.  I consider that this father has significant attributes to guide and parent [X].  [X] is not a child without some behavioural difficulties and the steady hand of the father together with the love and affection and parenting of the mother is going to enable [X] to achieve his full potential in life.  I am satisfied that the father’s proposal offers advantages to [X] in terms of complete involvement of both his parents all year every year in his life.  The mother’s proposal becomes essentially [X] being raised by his mother and with very little physical time with his father.  Ultimately I do not consider this proposal is in [X]’s best interests. 

16. [X] is a happy outgoing high-energy young boy who has displayed some signs of ritualistic behaviour which may lead to a diagnosis of ADHD.  If that were so I have no doubt that he will benefit from the combined parenting of both his mother and father on a regular basis.  Even if there is no future diagnosis, I am still of the view that [X] will benefit in the long term from having real and active involvement from his father and his mother, as opposed to living solely with his mother and spending likely four weeks a year with the father.

17. This decision will no doubt be devastating for the mother.  I know however that she is another who truly believes in what is in the best interests of [X].  Her parenting to date has shown this to be so.  The Court is hopeful that the mother will appreciate [X]’s best interests are paramount and in considering all of the issues referred to in this decision, that the Court’s conclusion is based on the best interests of [X] and in balancing those interests against mother’s right of freedom of movement, as I am required to do under the relevant case law.

18. I have every confidence that once [X] is living in a week on/week off arrangement, that if the mother wished to relocate to Melbourne, she would continue to consider the best interests of [X].  I am not satisfied that making any Order for the mother to relocate at some time in the future would be in the best interests of [X].   I have had to make this difficult decision on the material before me, and at the date of this trial, I am satisfied that the best interests of [X] are that he live with the mother in Cairns and spend time with the father as agreed to between the parties as seen in exhibit ICL11, and that his living arrangements remain settled. 

19. I therefore dismiss the application of the mother to relocate [X] to Melbourne.  I am satisfied that the draft orders prepared by the ICL are the orders which are in [X]’s best interests.  Those orders are supported by the father and the mother (being her alternate position in the event the relocation was disallowed).  In relation to the special days, the orders are non-specific.  I intend to issue specific orders in relation to the child’s time which will apply in the absence of any agreement to the contrary. 

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate: 

Date:  5 February 2015