BELGER & DELBERT

[2020] FCCA 3203

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELGER & DELBERT [2020] FCCA 3203

Catchwords:
FAMILY LAW – Parenting – best interests of the child – Orders made.

Legislation:

Family Law Act 1975 (Cth), s 60CC

Cases cited:

Knight & Knight [2016] FamCA 1085

Lansa & Clovelly [2010] FamCA 80

Applicant: MR BELGER

Respondent: MS DELBERT

File Number: PAC 5958 of 2017

Judgment of: Judge Newbrun

Hearing dates: 26 and 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Parramatta

Delivered on: 24 November 2020

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Simpson of Counsel

Counsel for the Independent Children’s Lawyer	Ms Rebehy of Counsel
Solicitors for the Independent Children’s Lawyer	Claremont Legal

ORDERS

1. That all previous orders in relation to the child X born in 2011 (“X”) be discharged.

2. That the Mother’s application to relocate the child’s residence from the B Region to the C Region area of Sydney be dismissed.

3. That the parents have equal shared parental responsibility in relation to X.

4. That X live with the Mother.

5. That X spend time with the Father as follows:

   (a)Every second weekend from the conclusion of school Friday, or 3PM if Friday is a non-school day, until the commencement of school Tuesday, or 10 AM if Tuesday is a non-school day;

   (b)In the intervening week, from Monday after school, or 3 PM if Monday is a non-school day, to Tuesday before school, or 10 AM if Tuesday is a non-school day;

   (c)For one half of each school holiday period as agreed and failing agreement as follows;

   (i)For the first half in odd numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

   (ii)For the second half in even numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

   (d)From 9am Christmas Day to 2pm Christmas Day each year;

   (e)During New Year as agreed and failing agreement as follows;

   (i)From 9am New Year’s Eve until 9am New Year’s Day 2020/2021 and each alternate year thereafter;

   (ii)From 9am New Year’s Day until 9am 2 January 2021/2022 and each alternate year thereafter.

   (f)During Easter as agreed and failing agreement as follows;

   (i)From 2pm Easter Sunday to 5pm Easter Tuesday in even numbered years;

   (ii)From 2pm Easter Thursday to 2pm Easter Sunday in odd numbered years.

   (g)From 9am until 6pm on Father’s Day;

   (h)Telephone communication between 6pm and 7pm each Wednesday;

   (i)At any other times as agreed between the parents.

6. That X’s time with the Father as otherwise provided shall be suspended as follows;

   (a)For one half of the school holiday period as agreed and failing agreement as follows;

   (i)For the first half in even numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

   (ii)For the second half in odd numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

   (b)From 9am Christmas Eve to 9am Christmas Day each year;

   (c)During New Year as agreed and failing agreement as follows;

   (i)From 9am New Year’s Eve until 9am New Year’s Day 2021/2022 and each alternate year thereafter;

   (ii)From 9am New Year’s Day until 9am 2 January 2023/2024 and each alternate year thereafter.

   (d)During Easter as agreed and failing agreement as follows;

   (i)From 2pm Easter Sunday to 5pm Easter Tuesday in odd numbered years;

   (ii)From 2pm Easter Thursday to 2pm Easter Sunday in even numbered years.

   (e)From 9am until 6pm on Mother’s Day;

7. For the purpose of changeovers, when changeovers are not occurring to and from school, the Mother shall deliver and collect X to and from the Father’s home at the commencement and conclusion of X’s time with the Father.

8. That the Mother and Father refrain from denigrating each other, or allow others to do so, within X’s presence or hearing distance.

9. That the Mother and Father refrain from discussing these proceedings within X’s presence or hearing distance.

10. These orders serve as authority for X’s school to discuss with the Father X’s school attendance and progress, to furnish reports and copies of any correspondence, newsletters or written material produced by the school and distributed to parents and both of the parents are entitled to fully participate in all and any activities at the school or connected with the school.

11. Each parent shall inform the other as soon as reasonably practicable of any serious injury or illness suffered by X whilst in that parent’s care and advise the other parent of any medical treatment X may require.

12. The parents are to communicate with each other via SMS text message and/or email between the hours of 8am and 9.30pm. In the case of an emergency, notice shall be provided as soon as practicable upon the happening of the event.

13. Each parent is to keep the other updated of any changes to his/her residential address, mobile telephone number and email address.

14. That the Independent Children’s Lawyer be discharged.

15. The ICL’s Application for Costs is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5958 of 2017

MR BELGER

Applicant

And

MS DELBERT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This final parenting hearing relates to the child X born in 2011 (“the child”).

2. The Father is aged 66 years. The Mother is aged 49 years. 

3. The parties commenced their relationship in 2003/2004. They married in 2008, according to the Mother.

4. The parties finally separated on about July 2014.

5. At separation, the Mother and child moved in with the maternal grandparents in Suburb D, having previously resided in Suburb E.

6. On 30 November 2018, this Court made interim Orders, inter alia, that the child live with the Mother; that the child spend time with the Father, in the aggregate, six nights each fortnight; that the child continue to be enrolled at F School; and the Mother’s interim application seeking to relocate the child’s residence from the B Region to the C Region area in Sydney, or an area in close proximity, be dismissed.

Proposals

1. The Father proposes final parenting orders in the same terms as the Court’s interim parenting Orders of 30 November 2018.

2. The Mother sought final parenting orders as set out in her Response filed 20 February 2018, but subject to two proposed amendments to proposed Order 3.2 and proposed Order 3.4 in her Response, as set out in an email to the Court from the Mother’s barrister dated 28 August 2020. Inter alia, the Mother proposed final parenting orders that:

   a)The Mother have sole parental responsibility for the child;

   b)The Mother be permitted to relocate from the B Region to the C Region area of Sydney or an area in close proximity;

   c)The child live with the Mother;

   d)The child reside with the Father every second weekend from 5 PM Friday until 4 PM Sunday. Once the Mother has relocated to the C Region, changeover on Friday afternoon shall occur at Suburb G railway station. The Mother shall collect the child from the Father’s residence at the conclusion of the child’s time with the Father on Sundays,

   e)Once per week, the child shall spend time with the Father on a mid-week school day, convenient to both the Father and the child, from the conclusion of school until 6 PM. The Father shall collect the child from the School and return the child to the Mother’s place of residence;

   f)Commencing from the date of these orders, the first weekend that the child is due to reside with the Mother per Order 3.2, shall be a weekend when the child (H) of Mr J has residency with his Father. The fortnightly weekend residency per Order 3.2 shall thereafter synchronise with the weekend that Mr J has H residing with him;

   g)The child to remain enrolled at F School until such time as the Mother relocates to the C Region. And after that at a local public school. The Mother shall discuss selection of new school with the Father;

   h)The child is to spend half of each school holiday period with the Father;

   i)Either parent may make a phone call to the child at any time between 6 PM and 7 PM every third day;

   j)The child may telephone the parent with whom he is not residing at any time and each parent will facilitate that communication when the child expresses that desire.

3. The Independent Children’s Lawyer (ICL) supported the Mother’s proposed orders that the Mother be permitted to relocate the child’s residence to the C Region. The ICL’s proposed final parenting orders are set out in her Minute of Order proposed, and which the Court has marked Exhibit F. Such proposed final parenting orders, inter alia, provide for:

   a)the parties to have equal shared parental responsibility for the child ,

   b)the child to live with the Mother;

   c)the child to spend time with the Father, inter alia, as follows:

   i)every second weekend from 6 PM Friday to 5 PM Sunday;

   ii)for a period of 10 nights of the April and September school holiday periods as agreed, and failing agreement:

   a.From 10 AM on the first Saturday of the school holiday period until 5 PM on the second Monday of the school holiday period.

   iii)For one half of the July school holiday period as agreed and failing agreement as follows:

   a.For the first half in odd numbered years commencing at 10 AM on the first Saturday of the school holiday period and concluding at 5 PM halfway thereafter;

   b.For the second half in even numbered years commencing at 5 PM halfway through the school holiday period and concluding at 5 PM the day before school term resumes;

   d)For the purpose of changeovers, the Mother shall deliver and collect the child to and from the Father’s home at the commencement and conclusion of the child’s time with the Father;

   e)The Father be restrained from consuming any alcohol 24 hours prior and during the time that the child is in his care.

   f)The Father is to ensure that he continues to attend upon his mental health care practitioners, including psychologists and psychiatrist, until such time as those practitioners recommend otherwise.  The Father is to comply with all recommendations as given by those practitioners.

4. The ICL, in the event that the Mother was not permitted to relocate the child’s residence to the C Region Area of Sydney, proposed Orders, inter alia (and summarising):

   a)That all previous orders in relation to the child be discharged.

   b)That the parties have equal shared parental responsibility for the child, save and except that the Mother shall exercise sole parental responsibility in respect of medical issues.

   c)that the child live with the Mother.

   d)that the child spend time with the Father as follows:

   i)Every second weekend from the conclusion of school Friday, or 3 PM Friday is a non-school day, until the commencement of school Monday, or 10 AM if Monday is a non-school day;

   ii)For one half of each school holiday period;

   iii)time at Christmas, New Year, Easter, Father’s Day;

   iv)telephone communication between 6 PM and 7 PM each Wednesday;

   v)At any other times as agreed between the parents.

Material relied upon

1. The Mother relied upon the following documents:

   a)Case Outline filed 19 August 2020;

   b)Response filed 20 February 2018;

   c)Trial Affidavit filed 6 August 2020;

   d)Notice of Risk filed 20 February 2018;

   e)Affidavit of Mr J filed 6 August 2020;

   f)School Report for X, Semester 1, 2020.

2. The Father relied upon the following documents:

   a)The Father’s Affidavits filed 29 November 2017, 31 May 2018, 21 November 2018 (3 affidavits filed this date), 2 July 2019 (2 affidavits filed this date), 21 February 2020,

   b)Affidavit of Ms K filed 3 August 2020.

3. The following exhibits were relied upon:

   a)Exhibit A: ICL’s Tender Bundle;

   b)Exhibit B: L School, Suburb M, 2018 Annual School Report;

   c)Exhibit C: Family Report dated 4 April 2019;

   d)Exhibit D: F School 2020 Semester 1 School Report for X;

   e)Exhibit E: Case Information of the Father filed on 20 August 2020;

   f)Exhibit F: ICL’s proposed Minute of Order.

Evidence

1. Throughout these reasons the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. Both parties live in Suburb F.

3. The child is in Year 4 at F School.

4. The parties separated in about July 2014 when the Father was incarcerated for about 3 months, relating to a conviction for driving whilst disqualified and a conviction for a fraud offence prosecuted by Fair Trading NSW. That latter conviction related to the manner in which the Father had conducted a business.

5. The Mother completed the Kids in Focus course run by the Suburb G Family Relationships Centre. The course focused on children’s needs in the context of family separation.

6. The Mother attended the Parenting after Separation course for 5 sessions in the second half of 2019. The Mother found this course to be very helpful and it gave her a better insight into how the child might be feeling throughout the separation.

7. The Mother has found that the Court’s interim orders, in place since September 2018, have assisted in settling down disputes between the parties about access to the child.

8. The Mother no longer holds any fear of the Father, and she has unblocked her phone.

9. On 26 February 2019, the child had an asthma attack. The child has had asthma since he was about five years of age. The Mother drove to the Father’s residence to give Ventolin to the child which settled him down.  The Mother left the Ventolin with the Father so that he could administer more in case the child needed it during the night.

10. On 27 September 2019, the child had another asthma attack when he was in the Father’s care.

11. On at least two occasions in 2019, and on numerous occasions in the first half of 2020, the Father requested the Mother to care for the child, during his time with the child, so that the Father could attend his own work.

12. The Father has started a new business “N Company” in partnership with another man, Mr O. The Father has rented assisted housing and receives an old age pension.

13. Since August 2015, the Mother has been employed in the B Region as the Manager at the Employer P.  Presently, due to the pandemic, she only works when demand requires and mostly this is 1 to 2 days a week, occasionally 3 days. Otherwise, the Mother is currently on jobkeeper payments. Before the pandemic, her annual salary was $85,000.

14. The Mother’s letter from her employer’s Talent and Culture Manager dated 23 July 2020 refers to the Mother’s career ambition to eventually become a Director. The author of the letter states that “due to the size of the team, organisational structure and current COVID conditions”, the Mother’s options of career progression are very limited, “and to achieve her ambitions and obtain higher income opportunities, would mean a move within the wider industry network in Sydney. Roles such as this are not common within the B Region further requiring (the Mother) to locate. Traditionally, salaries in regional areas are lower than those in the city which limit (the Mother’s) earning potential.”

15. The Mother wants to be able to grow her career and income so that she has a better ability to financially support the child in sports, school fees and other interests he might develop in the future. She believes that a move to Sydney will facilitate her career growth.

16. The child’s NAPLAN results for Year 3, inter alia, in the subjects, reading, writing, and numeracy, were higher than the national and school averages.

17. The Mother would like to give the child better opportunities for his education in Sydney.

18. The child is currently enrolled in various hobbies and sporting activities.

19. The Father is no longer the age manager for the child’s Sports Group.

20. Since 2016 the Mother has been involved with Mr J and they spend weekends and parts of the school holidays together whenever they can. Mr J has a son H aged nine years.

21. The Mother splits her time presently between the B Region and Suburb CC which involves much travel and planning.

22. The Mother asserts that she would like to live with Mr J, his child H and the child, whilst asserting, “although we are not quite there yet.”

23. The Father was the child’s primary carer from birth until his incarceration for three months in 2014. The Father was a stay-at-home Father, whilst the Mother worked with the Employer Q. The Mother was away for four days and nights each fortnight, and otherwise she was absent from 8 AM to 5 PM when working in Sydney. The Father cared for the child whilst she was absent.

24. Following the Father’s release from jail at the end of 2014, he also moved to the B Region. He began to spend regular time with the child which increased over time to an arrangement approaching equal time.

25. The Father resides in a two-bedroom villa in a 12 villa complex. There is a football field and a playground close by.

26. The Father does not have a drivers licence. He suffers from claustrophobia and cannot cope with travel and public transport.

27. The Father has three older children from two previous relationships.

28. The Father previously had a gambling addiction.

29. The Father asserts that due to his financial situation and claustrophobic condition he could not relocate to Sydney.

30. The Father assisted with reading tuition in the child’s class, for a period of time, following the child commencing kindergarten.

31. The Father assisted in the upbringing of Mr R and his sister Ms S, as their stepfather. In their letters of February 2020 they speak positively of the Father.

32. The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.

33. The Father is organising to obtain a computer and Wi-Fi for the child at his residence. He previously hasn’t had funds to obtain such items. He has just commenced a business and his self-esteem is improving. He devotes about 2 ½ to 3 days to the business including working each Sunday. The business services sites in the B Region. He has a business partner who owns a utility vehicle and trailer. 

34. The Father, on a daily basis, avoids crowds.

35. The Father proposes that the child attend the L School in Suburb M for high school. The fees payable at school are $4,500 per year. The Father proposes to meet the school fees. (During the Father’s oral evidence in this context, the Mother informed the Court that this school would be an option for the child if her proposed relocation was not permitted).

36. The Father stated that where he is today is a good place emotionally and physically.

37. The Father stated that he received great help (for his mental health) from social worker Mr T.

38. The Father stated that his claustrophobia is getting better; he stated that on weekends if he has to go near a train station, he will pick a silent train carriage.

39. He stated that in about 2018 his “Dark Ages”, referring to his parlous mental health, ceased. At about this time he had started to do volunteer work.

40. The Father stated that, in relation to his mental health, he does natural therapies. In this context, the Father referred to getting into the workforce (through the commencement of his new business) as helping him lift himself out of a big dark hole.

41. The Father presently communicates with the Mother a couple of times a week regarding the child. The parties and the child went to the orthodontist together, and there was no animosity between the parties.  The parties’ communication has improved since the family report interviews on 29 January 2019.

1. The Father presently pays $320 per week in rent without subsidies. The Father stated that if he moved to Sydney he would have to pay significantly greater rent to obtain similar quality accommodation to what he has now.

2. The child has recently told the Father that he wants to go to L School for high school. He told the Father that all of his friends are going there.

3. The child loves his present primary school.

4. The child and the Father play tennis together down the road.

5. Ms K, in her reference for the Father, speaks positively of the Father, including in relation to his care of the child and in relation to his volunteering work at the child’s school.

6. Ms K, in her letter annexed to her Affidavit filed 3 August 2020, states:

   As previously stated, I have known Mr Belger for many years.

   We both voluntarily work in the school canteen and have also been volunteering at the U Charity at both the Suburb V and Suburb D stores.

   I therefore have contact with Mr Belger via phone or in person at least 8 to 10 times a week, both during the day and night.  At no stage have I witnessed any behaviour or speech that would indicate that Mr Belger was inebriated.

7. In oral evidence, Ms K stated that she had known the Father for six years. Ms K and the Father had met working in the school canteen together. Ms K stated that the Father’s claustrophobia led to him doing one canteen shift only with less people present. She referred to herself and the Father volunteering for the children’s U Charity group. She volunteered in the shop whereas the Father volunteered as a delivery helper. She stated the Father was unable to work in the shop as it was too confined. In relation to the Father’s claustrophobia, Ms K stated the Father always has to have the windows down when travelling in a car. She referred to the Father needing open space.

8. Mr W, in his reference for the Father of 19 February 2020, speaks positively of the Father in relation to the Father’s involvement with the child’s sporting activity.

9. The Father attended the Parenting after Separation group held at Y Counselling, Suburb G, for 6 sessions in early 2019.

10. Mr O gave oral evidence.

11. Mr O stated that the Father has an excellent knowledge of nature and gardening.

12. Mr O stated that his son Z attends the L School. He stated that the school’s facilities were commensurate with the local grammar school. He stated that his grandson was flourishing at that school.

13. Mr O stated that he was aware of the Father’s criminal record. He referred to being at boarding school with the Father. He stated the Father was a good man. He stated that the Father and the child have a close bond. He had seen the Father discipline the child. He stated that the child respects the Father and heeds what he says. He stated that there was a friendship there between the child and the Father but he also observed a Father and son disciplinary aspect as well.

14. The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.

15. The Mother agreed that she considered all the Father’s children as outstanding citizens.

16. The Mother stated that presently she and the Father converse regularly, peacefully and comfortably, especially with a bike having been purchased for the child.

17. The Mother recalled the parties and the child going to the Father’s rented villa at Suburb F to inspect it before renting.

18. The Mother stated that the child, 98% of the time now, sleeps in his own bed.

19. The Mother stated that the maternal grandfather is aged 80 years, and her stepmother is aged 78 years.

20. The Mother stated that if she was not living in the B Region she would maybe visit her parents once each month.

21. The Mother stated that if she was to relocate, she would consider two schools that she had looked at, the C Region School and AA School. She stated that C Region School was a selective school.

22. The Mother stated that the closest selective high school to the B Region was a high school at Suburb G, being a one hour train ride away.

23. The Mother stated that she had not turned her mind to the child attending L School at Suburb M. She stated that if she was not permitted to relocate, she would consider that school. She stated that that school was a ½ hour train ride away from Suburb F. She stated that the school was about 22km from Suburb F being about a 35 to 40 minute car drive. She stated that the school fees for that school were cheaper than B Region school.

24. In the context of the Mother possibly relocating, the Mother stated that she would never take the child out of school midyear.

25. The Mother stated that it was a combination of things that were related to her desire to move to the C Region. She stated she enjoys living on the C Region. She said she could spend more time with Mr J. She stated that there were limited employment opportunities in the B Region.

26. The Mother stated that she did not deny that it would be a big change for the child to relocate. In this context she stated that it takes time to settle into a new location. She stated that her proposed relocation would be a challenge for the child however she felt that the child would overcome that challenge and “in the long run” it would be to his benefit.

27. The Mother stated that if the Court did not permit her proposed relocation she would remain living with the child in the B Region.

28. The Mother stated that the father has been made aware of the child’s asthma plan. She stated that she would like the Father and herself to be on the same page on this issue of the child’s asthma. She stated that she could photocopy the asthma plan for the Father.

29. The Mother stated that the child adores the Father.

30. The Mother stated that the child had spent time with the maternal grandparents (the maternal grandfather and step maternal grandmother) every Wednesday afternoon prior to the pandemic. She stated that on weekends maybe the child, the Mother and Mr J would visit the maternal grandparents and stay for an hour or so.

31. Mr J has continuing client commitments and obligations to his son in Sydney. He works in a business, as a consultant and has a domestic and overseas client base. Mr J would like to “further test the viability” of himself, the Mother, his son and the child living together as a family unit if the Mother was able to relocate.

32. Mr J gave oral evidence. The Court does not propose to set out the entirety of such evidence.

33. Mr J stated that he had been involved with the Mother for about four years. He stated that he had not discussed with the Mother, if she was to relocate, how he would support or help her out.

34. Mr J was asked by the ICL if he was prepared to support or assist the Mother if she was to relocate. He stated that this issue had not been discussed (with the Mother). He stated that whilst it may be an aspiration to combine with the Mother as a family unit, this depended on the Court’s decision (as to the proposed relocation). In this context Mr J referred to his commitments to his own son, his schooling and his business commitments. He stated that he had not discussed finances with the Mother.

The Family Report

1. The family report writer was Ms BB. She interviewed the parties on 29 January 2019.

2. The Father stated to the family report writer that he volunteers at X’s school each Tuesday and Thursday and at a local charity organisation each Wednesday and Sunday. He stated that he is not in a relationship.

3. The Mother stated to the family report writer that she works full-time, predominantly Monday to Friday 8:30am to 5pm and some Saturdays. Ms Delbert is in a relationship with Mr J (born in 1958). She stated that she and Mr J do not live together and have “no financial connections in any way”. Mr J lives in Suburb CC and is self-employed as a consultant. He reported that his son, H (born in 2010), lives with him in alternate weeks.

4. The Mother stated that her Father and step-Mother collect X from school each Wednesday and that X attends after school care each Thursday. Ms Delbert reported that X attends a hobby class on a Wednesday afternoon. She said that on Saturdays he participates in sports during the summer season and sports during the winter season.

5. The family report writer stated that there are approximately 3 kilometres (7 minutes driving time) between the parties’ residences and between Ms Delbert’s residence and F School. There is approximately 500m (6 minutes walking time) between Mr Belger’s residence and F School. There are approximately 115 kilometres (1 hour 50 minutes driving time) between Suburb F and Suburb CC/the C Region area of Sydney.

6. The Father stated that he has claustrophobia which impacts on his ability to travel.

7. The Father told the family report writer that he was the child’s age manager for his sports. He stated that the child wanted to remain living in the B Region. The Father stated that the child has a strong network in the B Region. He stated that the child was a popular child currently with his school peers and within his extracurricular activities.

8. The Mother told the family report writer that if the child was not permitted to relocate to the C Region area, she would remain residing in the B Region.

9. Mr J told the family report writer that he does not intend on cohabiting with the Mother if she relocates to the C Region area and that his primary focus is his son. He acknowledged that the Father was devoted to the child.

10. The Father stated that he currently consumes four or five beers each day.  He stated that alcohol relaxes him at the end of the day. The Mother stated that the Father was a regular drinker during their relationship and he had a high tolerance to alcohol.

11. The Father reported that he was diagnosed with audio and spatial claustrophobia a few years ago. He stated that he is sensitive to sounds and experiences difficulties in crowds and crowded spaces. He stated that he cannot drive and cannot physically and emotionally set foot on the train station, let alone on a train carriage during weekends. He identified that he had also experienced difficulties travelling by train to attend the family report interview. He stated that he currently sees a case worker, Mr T, at the B Region Mental Health Centre, Suburb V regarding his mental health.

12. The Mother stated that the Father had mentioned during their relationship that he had claustrophobia and was not good in large crowds.

13. The Father stated that communication between himself and the Mother was hopeless and that the Mother did not respect his parenting. He reported that there is no direct communication between himself and the Mother and that he can only leave a message for her.

14. The Mother reported that she has blocked the Father from contacting her and stated that he could contact her via the maternal grandparents if required.

15. The Father reported that the child enjoys physical activity and that he himself is competitive and that he and the child have a lot of competitions.

16. Both parties reported that the child was doing well at school. The Mother reported that the child did not appear to have any social difficulties.

17. The Mother reported that she thinks that the poor communication between herself and the Father stresses the child, and stated that she thinks the child wants the parents to get along. She stated that the child would benefit immensely, and it would assist with the child’s anxiety, if he could see the Mother and the Father having a normal conversation.

18. Mr J reported that he sees the child about once a fortnight.

19. The Father stated that he and the child are devoted to each other. He reported that he and the child have a lot of fun.

20. The Mother stated that the child gives the Father an awkward hug at changeovers, as the child does with the Mother, and they are usually outside playing when she collects the child. The Mother reported that the Father is the child’s hero currently. The Mother stated that she knows that the Father loves the child dearly and plays with him all the time.

21. The Father stated of the child’s relationship with the Mother that the Mother was very caring and loving.

22. The Mother stated that she and the child laugh together but there are times that she thinks she gets “too caught up in the day-to-day” and should spend more time with the child.

23. The child was interviewed by the family report writer.

24. The child presented as introverted, wary, and at times reluctant to engage.  He engaged in discussion regarding his education and interests, specifically sports.

25. The child provided an accurate account of the current parenting arrangements and stated that a positive aspect of the current arrangement was that he was with the Father on the day he does Sports because the Father is his Sports coach. He stated that he spends time with the maternal grandparents when in the Mother’s care and usually visits Suburb CC on weekends with the Mother, because Mr J lives there, and stated that he plays with Mr J’s son.

26. The child reported no concerns regarding either parent. He provided little information regarding Mr J but said that he likes him.

27. The child identified that the parents are sometimes friends and reported that if the Father forgets the child’s clothes the Mother asked the Father for them and he always gives them to her.

28. The child stated that he wants to stay in the B Region. He stated that, if he moves, he will only be able to attend sports every second weekend because he would have to travel between Suburb CC and the B Region. He stated that he would feel sad if he moved to Sydney because “none of his friends are doing that”. He stated that he would feel good if he remained living in the B Region because he has all his friends there and that they will attend V School.

29. The child reported a preference for the current arrangements to continue because the Mother and the Father get time to see him, as do his grandparents. He stated that he would feel sad if he were to spend less time with the Father than the current arrangements provide for, because he would not be as fit, reporting that he does the majority of his sport with the Father. He stated that he would feel sad if he was to spend less time with the Mother than he currently does because he would not see her that much.

30. Under the heading “Evaluation”, the family report writer stated, inter alia, that the child appeared to have a positive and established relationship with each parent. The child had provided a balanced account of each parent during interview and did not appear to be strongly aligned with either parent. The child appeared to enjoy his interactions with each parent during the interviews, and the child also appeared relaxed and comfortable in his interactions with each parent with no indication of fear, wariness, or hypervigilance towards either parent.

31. The child’s stated views, according to the family report writer, regarding a reduction in time with each parent, appeared largely consistent with his assessed relationships and, therefore, it was recommended that some weight be given to his views in this regard. 

32. The family report writer stated that given the assessed nature of the child’s relationship with each parent, he was likely to experience a significant decrease in the amount of time with either parent as difficult; this may result in the child experiencing emotional and/or behavioural difficulties.

33. However, it was recommended that limited weight be given to the child’s views due to his exposure to the related parental conflict and the appearance that the child has aligned himself with the Father’s views, likely due to pressure he has felt from both parents to align with one or the other.

34. The family report writer stated that information provided by the Father during interview regarding the dynamics of his relationship with the child raised concerns that he may have an enmeshed relationship with the child, and was, at least in part, meeting his own needs by involvement in the child’s schooling and extracurricular activities.

35. The family report writer stated that given the child’s assessed relationships with each parent, he was highly likely to benefit from the parties each being able to acknowledge the meaning for him of his relationship with both parents.

36. As to the Mother’s relocation proposal, the family report writer stated that if the child relocates to the C Region area, he will be unable to maintain his current schooling and extracurricular activities and is highly likely to spend less time with the Father than he currently does.  It also appeared likely, given the current arrangements, including involvement of the maternal grandparents, that the child would spend more time in outside school hours care than he currently does and, dependent on the Mother’s work commitments, might result in the child spending less time in the care of a parent than he currently does.

37. The family report writer stated that it was likely that the child would experience relocating, and the associated changes to his current arrangements, as stressful, which might result in him experiencing emotional and/or behavioural difficulties. The family report writer stated that the Mother demonstrated little understanding of the impact of relocating to the C Region on the child, or of the impact of a significant reduction in the child’s time with the Father. This raised concerns regarding her ability to identify and respond to any associated difficulties experienced by the child. The family report writer stated that the Mother not responding, or inadequately responding, to any difficulties experienced by the child is likely to exacerbate the difficulties experienced by him.

38. The family report writer stated that the accounts of each of the parties regarding family violence was suggestive of a conflict-instigated dynamic, with each alleging that the other was the primary perpetrator.

39. The family report writer stated that it appeared that the parties’ parenting relationship was characterised by hostility, limited communication, little trust in regard to the other, and ongoing conflict between them. It also appeared that both parents exposed the child to parental conflict. Neither party demonstrated an understanding of any contribution of their own actions to the ongoing conflict and each, particularly the Father, presented, according to the family report writer, as of the view that their behaviour was a justified response to the others’.

40. The family report writer stated that it was possible that the emotional and behavioural difficulties reportedly experienced by the child were, at least in part, due to the child being exposed to parental conflict, and may be indicative that the conflict has had a detrimental impact on his well-being.

41. The family report writer stated that given her concerns regarding each of the parties’ abilities to identify and prioritise the child’s needs above their own, it was not clear that it would be advantageous to the child if one parent were to have sole parental responsibility. It was therefore recommended that the parties have shared parental responsibility for the child.

42. The family report writer stated that the nature of the parenting relationship between the parties, and the potentially detrimental impact of exposure to parental conflict on X and on his ability to maintain meaningful relationships with each of the parties, contraindicates a shared care arrangement as being in X’s best interests. Such an arrangement is likely to require a high level of parental communication and cooperation and, if the current arrangements were to continue, X may experience the 8 transitions between Mr Belger and Ms Delbert per fortnight as disruptive. Therefore, such an arrangement was not recommended by the family report writer.

43. The family report writer then stated:

    100. It would therefore be recommended that X live primarily with one parent, irrespective of whether, or not, he relocates, and spend time with the other parent. Although concerns were identified during this assessment regarding each of the parties, including their ability to support X maintaining a meaningful relationship with the other, more significant concerns are identified in relation to Mr Belger, particularly regarding his relative ability to meet X’ emotional needs. It would therefore be recommended that X live primarily with Ms Delbert. Consideration could be given, due to the ongoing parental conflict, to X spending alternate weekends with Mr Belger. However, such a reduction in time is likely to be experienced as difficult by X, particularly given that this is likely to result in X spending more time in alternate care given Ms Delbert’s work commitments. This may result in X experiencing emotional and/or behavioural difficulties and therefore this is not recommended as being in X’s best interests.

    101. It is, therefore, recommended that the least detrimental alternative, if X remains living in the B Region area, is to spend time with Mr Belger alternate weeks, from Friday after school to Tuesday before school, and in intervening weeks, from Monday after school to Tuesday before school, and for half of each school holiday period. Arrangements such as these provide opportunities for X to maintain meaningful relationships with both parents, including block periods of leisure time with each parent. Such an arrangement would also allow X to maintain current social capital and involvement in extracurricular activities, limit X’s transitions between his parents’ care each fortnight, and largely conform to a set pattern, thus providing stability, consistency and predictability for X. Arrangements such as these would also likely reduce the parties’ need to communicate and cooperate regarding arrangements for X, thus allowing them to largely parallel parent X and potentially decrease X’s exposure to parental conflict.

1. The family report writer gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.

2. The report writer stated that having considered all the updating material provided to her she would not make any changes or amendments to the family report.

3. The family report writer was questioned as to the Father’s management of his mental health, and this evidence was given:

   Yes.  Okay, and if his Honour was to, on balance, find that Mr Belger is not actively managing his mental health or not following treatment, what risks does that pose for X?--- It depends on what the nature of the mental health problem is, what the potential impact is on Mr Belger of non-compliance and therefore what the potential impact may be on his parenting.  It possible that it could result in him being quite inconsistent, that X might experience him as quite unpredictable, as chaotic, that he might have a decreased ability to reflect on X’s own needs, meet X’s emotional needs.  On the more extremes end of the spectrum, he – you know, there could be some levels of inability to meet X’s needs on a basic levels and neglect.  Unmanaged mental health problems can be associated with child abuse but aren’t necessarily, so it would really be dependent on what the specific impact is on Mr Belger of non-compliance with any recommended treatment.

4. The family report writer was questioned as to her recommendation, in paragraph 101 of the family report, that the least detrimental alternative, if the child remained living in the B Region area, was to spend time with the Father for alternate weeks, Friday after school to Tuesday before school, and in intervening weeks, from Monday after school to Tuesday before school, and for half of each school holiday period, and this evidence was given:

   Ms BB, I note your recommendation in paragraph 101 of your family report as to the least detrimental alternative for the child?   ---Yes.

   If the child remains living in the B Region area. If you assume that since your interviews with the parties in I think it was April last year, if you assume, contrary to paragraph 60 of your report, that at the time you interviewed the parties, there was no direct communication between them.  If you assume that since that time, that is, since April last year and the current time, there has been increased positive communication between the parties, would that tend to firm up your recommendation in paragraph 101 as to the child spending time with the Father, in the aggregate, five nights per fortnight?---Yes, certainly there would need to be some level of communication between the parties in order to do that.  If – I wouldn’t just be looking at communication, though; I would actually be looking at the underlying dynamic between the parties and whether or not there has been a shift there in terms of has there been a decrease in the hostility between the parties? Are they better able to view the other one positively and better able to reflect on what the other one is able to offer to X as a parent, or are there still concerns there that I observed in terms of those factors?  So it’s not just about, from my point of view, the communication but also about the – the parenting dynamic and the co-parenting dynamic between the parties and whether or not there has been some real change there.

241. The Court accepts the evidence of the family report writer.

Legal Principles

1. The Court refers to Foster J’s recitation of relevant legal principle in relation to parenting proceedings as set out in the decision of Knight & Knight [2016] FamCA 1085 as follows:

   [134] Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

   [135] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 at 792 Kirby J said:

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

   [136] Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   [137] In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

   [138] Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. Sections 61DA(2) and (4) provide that this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.

   [139] In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).

   [140] The Full Court in Goode v Goode [2006] FamCAFC 1346; (2007) 36 FamLR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.

2. The Court also refers to Foster J’s recitation of relevant legal principle in relation to relocation cases in the aforesaid decision of Knight & Knight [2016] FamCA 1085 as follows:

   [142] The jurisprudence (see B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles [2007] FamCA 1230; (2008) Fam LR 275, (2007) FLC 93-343, Malcolm & Monroe [2011] FamCAFC 16, Sayer & Radcliffe and Anor [2012] FamCAFC 209) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.

   [143] In Taylor v Barker [2007] Fam CA 1236; (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:

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

   Their Honours went on to say:

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

   [144] In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J heard an appeal as a single Judge pursuant to s 94AAA (3) of the Act. At [79] to [81] Boland J identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:

   In considering whether the child should live with the parent who proposes to relocate a Court:

   Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The Court refers to Foster J’s discussion of “meaningful” and “meaningful relationship” in Knight & Knight [2016] FamCA 1085 as follows:

   [151] In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

   [152] In McCall & Clark [2009] FamCAFC 92, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   [118]... the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents...

   [153] The enquiry is a prospective one, looking forward for the children in the context of parental relationships.

2. The child has a meaningful relationship with both parents and will benefit from a continuance of those relationships.

3. Should the Court make the Mother’s proposed final parenting orders relating to the child’s residence being relocated to the C Region area from the B Region, there is a significant risk that the child’s meaningful relationship with the Father will be detrimentally affected.  In these circumstances, there is a significant risk that the child will experience emotional harm.

4. During the child’s life to date, apart from the short period when the Father was incarcerated in 2014, the Father has been significantly involved in the child’s life, both in the home, at school, and in extracurricular activities of the child. It is apparent that the Father is particularly dedicated to the child’s care and the child enjoys having the Father’s close involvement in his life. For some significant time now, the parties’ parenting arrangement has effectively facilitated the child spending 6 nights per fortnight with the Father. Should the Court permit the child’s residence to be relocated to the C Region, such time would be reduced, during school term times, on the proposals of the ICL and the Mother, to 2 nights per fortnight. 

5. Such a change would represent a very significant reduction in the child’s usual time with the Father. Again, such change would carry the significant risk that the child would experience emotional harm. Such emotional harm would not only arise from spending significantly less time with the Father, but from the real chance of the child losing his friendships in the B Region, the loss of his usual schooling environment, and the loss of sporting routines in the B Region.

6. Should the Court not allow the Mother’s proposed relocation of the child’s residence to the C Region area, there is a significant prospect that the child’s meaningful relationship with the Father can be maintained, together with the maintenance of the child’s friendships and usual routines and environments in the B Region.

7. Should the child:

   a)remain living in the B Region;

   b)live with the Mother there;

   c)spend time with the Father, in the aggregate, for 5 nights each fortnight, during school term time;

   d)spend time with the Father for half of each school holiday period,

   e)spend time with the Father at Christmas, during New Year, during Easter, on Father’s Day, in accordance with the ICL’s alternate proposals;

   f)have telephone communication between 6 PM and 7 PM each Wednesday; and

   g)spend time with the Father at any other times as agreed between the parents,

   there is a significant prospect that the child’s meaningful relationship with the Father can be maintained.

8. The evidence and recommendations of the family report writer are consistent with the Court’s above views.

9. In relation to the child living primarily with the Mother, the Court refers to the family report writer’s concerns relating to, in particular, the Father’s relative ability to meet the child’s emotional needs, as discussed, for example, in paragraph 100 of the family report.

10. Again, the child is presently spending 6 nights each fortnight with the Father, and 5 nights, in the aggregate, each fortnight during school term would not represent a major reduction in the child’s time with the Father and would address the concerns of the family report writer in relation to the Father.

11. As to the Court’s above proposed time to be spent between the child and the Father during school term time, the Court has not overlooked the Father’s evidence that presently he is working in his new business on Sundays. The Father did not state how many hours he works on a Sunday, and nor did he indicate that he could not re-arrange his Sunday work time if the child was to spend time with him on the fortnightly Sunday. This evidence of the Father does not cause the Court to alter its above proposals.

12. The ICL proposed, in the alternate, should the Court not permit relocation, that the child spend time with the Father, during school term time, every second weekend from after school Friday to before school Monday, being effectively three nights each fortnight. Such proposal would represent a major reduction in the child’s time with the Father and would carry the significant risk that the child’s meaningful relationship with the Father would be detrimentally affected and the child would suffer emotional harm. Such proposed order by the ICL would not be in the best interests of the child.

13. The ICL and Mother contended that the evidence pointed to the Father having (or at least possibly having) an enmeshed relationship with the child and that the Father was meeting his own needs through involvement in the child’s schooling and extracurricular activities. They pointed to the family report writer’s evidence in this context, including the latter’s evidence that this possible enmeshment raised significant concerns regarding the Father’s ability to identify and meet the child’s psychological needs currently and in the future, including tolerating the child’s differentiating during adolescence. The family report writer, in oral evidence, consistent with paragraph 89 of the family report, was not prepared to move from her concern that the Father “may” have an enmeshed relationship with the child. The Court nevertheless acknowledges the concerns of the family report writer in this regard. The Court is of the view that its proposals discussed above under the meaningful relationship primary consideration, having the effect of reducing the child’s time with the Father during school term time from the present time spent by the child with the Father pursuant to existing interim parenting orders, will adequately address these concerns of the family report writer.

1. The Court gives substantial weight to this meaningful relationship primary consideration, which the Court regards as very important in this case and which points significantly against relocation.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. During the parties’ relationship there was intermittent verbal conflict between them, with each party probably having some personal responsibility for such conflict. However, post separation, and following the Father being released from jail in late 2014 and up to about 2018, taking into account the Father’s difficulties during that period relating to his mental health, it is likely that the Father’s responsibility for verbal conflict with the Mother outweighed the Mother’s responsibility in that regard. 

2. The parties’ ability to communicate with each other in recent times probably represents an improvement to their communication with each other since the interviews with the family report writer in January 2019. There probably remains some distrust between the parties, particularly from the Mother towards the Father.

3. The Mother and ICL contend that the Father is of poor moral character and point to his criminal record. They contend that the Father, in this regard, poses a poor role model for the child. The Court observes that, apart from a shoplifting conviction in September 2017, the Father’s previous convictions are of some antiquity. 

4. In relation to the shoplifting conviction, the police material at page 66 of Exhibit A indicates that the Father told the police that he desperately needed some food and didn’t have any money. The police notes record that while dealing with the Father the police found him to be remorseful, compliant and he made full admissions. The Court observes that this offence was some three years ago and is the Father’s last recorded criminal offence, and further, that prior to that offence in 2017, his last previous offence was mid 2014. And further, it is likely that when the shoplifting offence occurred in 2017, the Father’s mental health was still unsatisfactory and was during a period when he was endeavouring to positively remake his life.

5. The Father readily acknowledges his past criminal history. He accepts full responsibility for the convictions that led to his incarceration in 2014 for three months. The Court accepts that he apologised to the Mother in this context. He acknowledges his previous gambling addiction. He acknowledges making mistakes in his life that led to his breaking the law.  Since being incarcerated in 2014, he has undertaken significant volunteer work in the B Region including at the child’s school.  His character referees, including Ms K, attest positively, inter alia, to the Father’s involvement in volunteer work and the child’s extracurricular activities.

6. The Mother and ICL contend that the Father’s consumption of alcohol poses a significant risk of harm to the child. On the evidence before the Court, the Court does not accept this contention. The child did not express fear or any significant concern in relation to the Father at the family report interviews. The Father’s friend Ms K stated that she had regular contact with the Father during the day and evening and he did not appear inebriated. The Father had stated that he drank about four to five beers at the end of each day to relax, and that on occasion it was sometimes as little as two beers. The Father appears to now have a physically active life. The Mother stated that the Father, historically, had a high tolerance to alcohol. There is no expert evidence that the Father’s admitted consumption of alcohol poses any significant risk of harm to either himself or the child.

7. The Mother and ICL contend that the Father’s mental health is not adequately treated.

8. The records of the B Region Local Health District relating to the Father include psychiatric reviews of the Father by Dr DD over a significant period beginning in about 2015 up to at least 2017. 

9. In the consultation between the Father and Dr DD on 19 October 2015, the psychiatrist thought the Father’s irritability was more driven by depressed mood than hypomania. The Father was taking quetiapine medication. The doctor stated that the Father’s speech was normal with no pressure, no formal thought disorder was evident, there were themes of anger and resentment, though somewhat milder, and his insight was fairly good. The doctor saw the Father’s current state as more reflective of his circumstances than of mood disorder. The doctor hoped that with confirmation of a date for the Father’s hip surgery, he anticipated that following that, with increase capacity for exercise, there should be further improvement.

10. At the consultation on 21 April 2016, the Father told the doctor that he needed help, and described irritability and difficulty in controlling anger.  The Father spoke with the doctor about the stress he is currently facing with housing. The doctor noted that the Father recognised his problematic mood and was seeking help. The doctor stated that whilst the Father did not present in a typical fashion, his history was certainly at least suggestive of bipolar disorder, and there were current features of acceleration and pressure of speech, and changeable, irritable mood. On that basis he discussed various pharmacological options to help stabilise the Father’s mood with the Father.

11. In the consultation on 30 May 2016, the psychiatrist stated that he thinks, given the Father’s response to mood stabilising treatment, that it is more clear that he has a bipolar affective disorder. He noted that the Father reported only minor residual symptoms at this point, despite significant social stress source. The doctor asked the Father to continue with the ziprasidone medication.

12. In the consultation of 29 July 2016, the psychiatrist noted that there seemed to have been a marked improvement in the Father’s stability of mood.

13. In the consultation on 2 December 2016 with the psychiatrist, the psychiatrist noted that the Father’s increased exercise and mobility had brought a substantial further improvement in the Father’s mental state, and the psychiatrist simply encouraged the Father in those efforts.

14. The Father annexes to his Affidavit filed 2 July 2019, a letter from social worker, Mr T dated 18 January 2019. In that letter Mr T states, inter alia:

    Mr Belger has been known to the Suburb V Community Mental Health Service since January 2015 where he was referred for intensive case management by the B Region Access mental health assessment service.

    From May 2015 to November 2018 I have been Mr Belger’s primary mental health worker, and supported him intensively in the community.

    Mr Belger is diagnosed with a primary Axis 1 Bipolar Disorder with mixed affective states.  Secondary to this mood disorder is an anxiety disorder that is consistent with claustrophobia.  This condition arises from early trauma, and has led to avoidant behaviours around travelling given the significant anxiety and panic this elicits.  Mr Belger continues to struggle with periods of acute anxiety, characterised by features of panic, dysphoria and acute distress particularly on public transport, and in confined public spaces.

    Mr Belger is particularly sensitive to anxiety triggers in the spatial and auditory fields, which given enduring psychosocial stressors over the past years has been incompletely resolved by psychological therapy.  Mr Belger is insightful, and aware of the impacts of this long-standing condition, and remains a case managed client of the Suburb V CMH team.”

15. The Court refers to the discharge report dated 16 July 2019 from the Suburb V Mental Health Team relating to the Father. This report states, inter alia, that the Father has been reluctant to receive any psychological assessment or interventions for his claustrophobia. It states that in late April 2019 the Father reluctantly agreed to talk with his GP about a referral to see a psychologist.  The report states that the Father remaining a client of the Team cannot be justified in the long-term where the sole focus in having any contact is essentially about debriefing and supporting the Father with regard to his custody issues. It states that these are matters that can best be the focus of psychological interventions together with the Father’s claustrophobia. The report states that while a client of the service there have not been any acute issues or general concerns for the Father’s safety. The report refers that in the process of engaging with the service and receiving support, the Father has additionally paid off in full previous traffic fines.

16. In the short report of psychologist Ms EE dated 8 February 2020, she states:

    (The Father) experiences Claustrophobia, this is most prevalent in situations where he has to travel on transport, and in large venues.  He has had this condition for a long time, more than 5 years.  Generally (the Father) finds it difficult to go to Sydney on public transport, and does not drive.

17. It is apparent that the Father has chosen not to seek psychological treatment at least since being discharged from the care of the Suburb V Mental Health Team in about mid 2019. He has chosen not to ingest medication in relation to previously diagnosed bipolar disorder, anxiety and claustrophobia. It is apparent that the Father wishes to treat himself with natural therapies, and was never comfortable in regularly ingesting medication. Having said that, it is apparent that the Father has formed the view that his claustrophobia will be with him indefinitely and that his method of dealing with this condition is to avoid crowded spaces, including crowded public transport. The Court accepts that the Father is alert to situations which might lead to claustrophobic symptoms and will take steps to avoid such situations.

18. The Court accepts the Father’s evidence that he otherwise presently feels well from a mental health standpoint. The Court accepts the Father’s evidence that he has felt significantly better from a mental health standpoint since about 2018 when he came out of what he described as his Dark Ages. The father experienced parlous mental health and demonstrated some adverse behaviours, in particular, in the years following his release from jail until about 2018; it was during this period that the Father was endeavouring to re-establish a meaningful life for himself, including reasonable accommodation. He received regular and helpful assistance for a significant period from the social worker Mr T.

19. In this context, it is important to observe that the child did not describe to the family report writer any significant behaviour from the Father which might be consistent with parlous mental health in the father. Nor did the child describe to the family report writer any fear or wariness of the Father in any significant respect.

20. The Court finds that the Father’s experience of claustrophobia, in certain situations, does not significantly affect his parenting capacity for the child. The Court does not accept that the child has adopted a significant role in looking after the Father in such circumstances. The Court does not accept that the child’s occasional pointing out to the Father of crowds, so as to assist the Father in avoiding them, is unnecessarily burdensome for the child. Again, the Court refers to the child’s statements in relation to the Father expressed to the family report writer, and lack of significant complaint of the Father to her.

21. As to the contention of the Mother and ICL that the Father is unable to regulate his emotions, the Court finds that the Father’s previous problems in this respect have dissipated to a not insignificant extent and which are consistent with the parties’ recent improvements in communication and co-parenting of the child, consistent with the Father’s commencement of his business, consistent with the positive evidence of the Father’s witnesses in relation to the Father, and consistent with his positive interactions with the child.

22. As to the Father’s care and treatment of the child and the child suffering an asthma attack, the Court finds that the Father is now sufficiently alert to recognise any significant asthma symptoms in the child and treat them appropriately.

23. The Court finds that the Father is now sufficiently alert to the need for the child to have ready access to a computer and access to the Internet.

24. Subject to the Court’s discussions above under the meaningful relationship primary consideration, the Court would assess that presently there is no significant risk of the child being exposed to abuse, neglect or family violence when spending time with the father. 

25. In the view of the Court, this need to protect primary consideration is neutral as to the issue of relocation.

Section 60CC(3) - Additional Considerations

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

1. The child wishes to remain living in the B Region. He is aged 9 years, and will turn 10 years of age in February next year. The Court gives some weight to the child’s views but not significant weight, and in this regard, the Court refers to the family report writer’s evidence.

2. This consideration tends to not support the relocation but not significantly so.

(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. The child has a positive relationship with the maternal grandparents who reside in the B Region. The child had spent time with the maternal grandparents (the maternal grandfather and step maternal grandmother) every Wednesday afternoon prior to the pandemic. Should the child relocate, he would likely spend significantly less time with the maternal grandparents.

2. The child has a positive relationship with his stepsister FF. He told the family report writer that he likes Mr J but could not state why. It would appear that he enjoys playing with Mr J’s son H.

3. This consideration tends to point against relocation, having regard to the maternal grandparent’s residence in the B Region and the likelihood that the child would spend significantly less time with the maternal grandparents if relocation occurred.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parties have taken, or have sought to have taken, such opportunities.

(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. Historically, the Mother appears to have been the breadwinner to the family. Post separation, each party has maintained the child when in their respective care. The parties have shared the child’s expenses equally in more recent times. 

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

i) either of his or her parents; or

ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussions above under the meaningful relationship primary consideration. 

2. As discussed above under the meaningful relationship primary consideration, should the child’s residence be relocated to the C Region, there is a significant risk, inter alia, that the child’s meaningful relationship with the Father will be detrimentally affected. In these circumstances, there is a significant risk that the child will experience emotional harm.

3. It is apparent that the child has positive relationships with the maternal grandparents, which relationships have been fostered whilst the child and parents have lived in the B Region. Should the child and Mother return to live in the C Region, the maternal grandparents will probably spend reduced time with the child.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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. The Court refers to its discussions above under the meaningful relationship primary consideration. Should the child relocate to the C Region then taking into account:

   a)the Father’s financial circumstances and inability to relocate himself,

   b)the Father’s restricted travelling capacities with claustrophobia,

   c)that the Mother before the pandemic was working full-time and, at least prospectively, would reasonably expect to spend time with the child on fortnightly weekends,

   the child’s ability to spend time with the Father, during school term times, beyond two nights each fortnight, would be impractical.

(f)  The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The Court refers to its discussions above under the need to protect primary consideration, and to the evidence of the family report writer in relation to the parties. Subject to such discussions and evidence, each party would appear to have not insignificant capacities in this regard.  

(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. The child appears to be progressing well, including in the social and academic spheres. Each parent would appear devoted to the child.

(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. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The Court refers to its discussions above under the primary considerations, and to the evidence of the family report writer. Otherwise, both parties have usually demonstrated satisfactory attitudes toward the child and to their responsibilities of parenthood.

(j) Any family violence involving the child or a member of the child's family

1. The Court refers to its discussions above under the need to protect primary consideration.

(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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

(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. In the Court’s view, should the Mother and child relocate to the C Region, there is a significant prospect of there being further proceedings; in this context, the Court refers to its discussions above under the meaningful relationship primary consideration.

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

1. It is convenient at this point to discuss the advantages and disadvantages of the parties competing relocation proposals, to the extent that they have not been discussed above under the s 60CC considerations.

2. The Father asserts that he could not cope living in Sydney with his claustrophobia. In the view of the Court, there is a significant risk that the Father’s experience of claustrophobia would be exacerbated living in Sydney because the Father would likely find the crowded environment in Sydney as particularly stressful. 

1. In relation to the Mother’s proposal regarding changeovers at Suburb G train station, the Court finds that there is a real possibility that the Father might find travelling by train from Suburb F to Suburb G and return, on a fortnightly basis, as stressful and exacerbating of his claustrophobia. Nevertheless, the Father has on occasion travelled by train without any significant health impact. The Father may be able to manage this issue by travelling in a silent train carriage as he had done before. The ICL proposed that changeovers be effected by the Mother travelling to and from the Father’s home. This issue of claustrophobia in the context of such proposed train travel (again, proposed by the Mother and not the ICL), in the view of the Court, is neutral as to relocation.

2. The Father has just established a small business in the B Region, which is in its infancy. The income of this business presently does not appear to be significant. The Father rents his present accommodation. He obtains a pension from the government. There is no suggestion that he owns significant assets. The Court has a significant doubt that the Father could cope financially living in Sydney, particularly in relation to the payment of rent. The Court accepts the Father’s evidence that he could not afford Sydney rents again. 

3. The Mother contends that the child will have significantly better educational opportunities living in the C Region area relating to schooling. She points to significantly better Naplan results in certain C Region schools compared to the schools in the B Region. The Court is not persuaded that such results necessarily indicate that the child is likely to achieve greater academic results, or indeed a better secondary education overall, attending a school in the C Region area. The Mother adduces no expert evidence, for example from a suitably qualified educational expert, to indicate that the child’s schooling experience, academically and otherwise, is likely to be superior attending a school in the C Region area compared to a school in the B Region. The evidence before the Court relating to the high school proposed by the father for the child, L School, suggests that that school may well provide the child with a sound high school education. The child is progressing well at his current primary school. There is no significant material before the Court to suggest that he has been receiving an inferior education in his current school compared to the education he might have received attending school on the C Region. In the view of the Court, on the evidence before the Court, this issue of educational opportunities for the child is neutral as to relocation.

4. The Mother contends that she wants to advance herself career-wise and financially and that she will have greater opportunities in this regard living in Sydney.

5. In this context, prior to the pandemic emerging and her usual full-time employment with the Employer P in Suburb D being significantly affected through a reduction in working hours, the Mother was earning $85,000 per annum. 

6. The Mother has adduced in evidence two advertisements for employment positions; one in the hospitality industry in Sydney, and another for the position of Manager within Employer GG. It is not clear what salaries these advertised positions would offer. The Mother has adduced no significant evidence as to her prospects of being successful in securing such positions or indeed any other positions, including the position of a Director, referred to in the letter below. The Court observes in this context that the Mother’s present position with her employer is Assistant Director; there is no evidence adduced by the Mother, by reference to her education, training and/or experience, as to her prospects of advancing from such role to a role such as a Director.

7. By reference to the Mother’s letter from her employer’s Talent and Culture Manager, Ms HH, dated 23 July 2020, previously referred to in these Reasons, it is not clear whether the Mother’s “options of career progression” within the B Region might significantly improve absent the “current COVID conditions”; the author of that letter had stated, at least by inference, that the “current COVID conditions” was a contributor factor to the Mother’s options of career progression being “very limited”. 

8. The Court should also state that it is not apparent from the above letter what qualifications or expertise Ms HH has to make the statements that she does in her letter noting that her position is Talent and Culture Manager. 

9. Nevertheless, the Court accepts the Mother’s evidence, albeit expressed quite generally, that were she to relocate to Sydney there may well be increased opportunities for her to progress her career and income potential due to the large number of businesses and other hospitality related businesses based in Sydney. However, and again, the Mother’s personal prospects of so progressing her career and increasing her income, and if she was able to, to what extent, is quite unclear on the evidence. Having stated the above, the Court accepts that the Mother’s desire to advance her career and increase her income supports relocation.

10. The Mother contends that should she be permitted to relocate the child’s residence to the C Region area, she will be better able to seek to promote her relationship with Mr J. The Court acknowledges that this may well be the case. Having said that, the impression obtained by the Court from the evidence was that it was far from clear that her relationship with Mr J would necessarily progress in any significant manner should the Mother be permitted to relocate to the C Region area. The Court observes that on the Mother’s own admission, in terms of the Mother and child potentially living with Mr J and his son H, she and Mr J “are not quite there yet.” Mr J’s own evidence, in terms of the Mother and himself, his own son and the child, living together, was cautiously expressed, having indicated that he and the Mother had not had complete discussions in this regard. Mr J had told the family report writer, albeit in March 2019, that he did not intend on cohabiting with the Mother if she relocates to the C Region and that his primary focus was his son.

11. Mr J stated that he had not discussed with the Mother, if she was to relocate, how he would support or help her out. He stated that he had not discussed finances with the Mother. Mr J referred to his commitments to his own son, his schooling and his business commitments. The Court observes that Mr J has spent time with the Mother and child in the B Region. The Court has not overlooked the Mother’s evidence that the travel and planning of travelling between the B Region and Suburb CC has “at times” placed a heavy strain upon “all of us”. Having stated the above, the Mother’s desire to advance her relationship with Mr J by moving to the C Region area supports the proposed relocation.

12. The Mother submitted that relocation should be permitted to facilitate her “improved well-being and mental health”. There was no significant evidence before the Court to suggest that the Mother has or was likely to experience adverse mental health if she is not permitted to relocate.  The Court acknowledges that the Mother may well experience disappointment if not permitted to relocate, however, it is not persuaded that there is a significant prospect that she will experience adverse mental health if not so permitted. This submission is neutral as to relocation.

13. On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will be in the best interests of the child to remain living in the B Region and to not permit the proposed relocation. In this context, the matters that have led the Court to find that, on balance, the proposed relocation should not be permitted, are those discussed above under the meaningful relationship primary consideration which, again, the Court gives substantial weight and which the Court regards as very important in this case.

Parental Responsibility

1. The Court refers to the parties and ICL’s respective proposals for parental responsibility. The ICL sought an order that the parties have equal shared parental responsibility for the child, except that the Mother should exercise sole parental responsibility in respect of medical issues.  During final submissions, the Mother sought an order for equal shared parental responsibility if she was permitted to relocate, and an order for sole parental responsibility if she was not so permitted.

2. The Court is not persuaded that the parties should not have equal shared parental responsibility for the child.

3. If the Court were to make an order that the Mother have sole parental responsibility in relation to the child, that would entail the Mother having the sole entitlement to make major decisions affecting the child’s care welfare and development, without reference to the Father. In this context the Court observes that the child is only aged 9 years.

4. In Lansa & Clovelly [2010] FamCA 80, Murphy J discussed the statutory framework under the Act in relation to the issue of parental responsibility.

   [136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).

   [137] Parental responsibility can, though, be altered by the making of a parenting order by the Court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).

   [138] But, when a Court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.

   [139] The statutory presumption just referred to is rebuttable in circumstances where the Court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the Court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).

   [140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a Court determines what is in a child’s best interests”. It is, then, again called into use in this context.

   [141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.

   [142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).

   [143] “Major long-term issues” is defined in s 4:

   major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future);

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

   (c) the child’s health

   (d) the child’s name;

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

   [144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.

   [145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).

5. The child has over 8 years left until reaching adulthood. It is a very serious matter to exclude a parent from decision making in respect to major decisions affecting the child. In Lansa & Clovelly [2010] FamCA 80, Murphy J stated:

   [148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.

   [149] If that is the meaning of the expression, then, in my view, a Court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).

6. The Court recognises that the Mother, in particular, retains a significant level of distrust in relation to the Father in respect to the child. And it recognizes there has been, historically, a not insignificant level of disputation between the parties, albeit that in recent times the parties have been conversing with each other without significant conflict.

7. Nevertheless, the Court is of the view that there is a real prospect that the parties will be able to reach agreement in relation to major decisions affecting the child’s care, welfare and development, in a timely fashion and without significant conflict. Again, prospectively, at this time, there would appear to be limited major decisions to be made for the child, apart from the choice of secondary school. The Mother had stated that, in the event that the relocation was not permitted, she would consider the appropriateness of L School for the child for secondary school.

8. The child loves each parent. He is progressing well. He has no significant health issues, apart from seasonal asthma.

9. The child should have the benefit of having each parent making a contribution into major decisions affecting him.

10. As to the Mother’s submissions relating to parental responsibility, the Court also refers to its discussions above under the need to protect primary consideration.

11. As to the ICL’s submissions relating to parental responsibility, the Court also refers to its discussions above under the need to protect primary consideration, including in relation to the child’s asthma.

12. It will be in the best interests of the child that the parties have equal shared parental responsibility for him.

13. As to equal time, with the child remaining in the B Region, it will not be in the best interests of the child that he be subject to an equal time parenting regime, and in this regard the Court refers to its discussions above under the primary and additional considerations of s60CC of the Act, and the evidence of the family report writer. Equal time would probably be reasonably practicable with the child remaining in the B Region.

14. As to substantial and significant time, pursuant to the Court’s proposed time-with Orders, discussed above under the meaningful relationship primary consideration, the child will spend time with the Father probably constituting substantial and significant time under s65DAA(3) of the Act, which will be in the best interests of the child and such time will be reasonably practicable.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:

2. That all previous orders in relation to the child X born in 2011 (“X”) be discharged.

3. That the Mother’s application to relocate the child’s residence from the B Region to the C Region area of Sydney is dismissed.

4. That the parents have equal shared parental responsibility in relation to X.

5. That X live with the Mother.

6. That X spend time with the Father as follows:

   (a)Every second weekend from the conclusion of school Friday, or 3PM if Friday is a non-school day, until the commencement of school Tuesday, or 10 AM if Tuesday is a non-school day;

   (b)In the intervening week, from Monday after school, or 3 PM if Monday is a non-school day, to Tuesday before school, or 10 AM if Tuesday is a non-school day;

   (c)For one half of each school holiday period as agreed and failing agreement as follows;

   (i)For the first half in odd numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

   (ii)For the second half in even numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

   (d)From 9am Christmas Day to 2pm Christmas Day each year;

   (e)During New Year as agreed and failing agreement as follows;

   (i)From 9am New Year’s Eve until 9am New Year’s Day 2020/2021 and each alternate year thereafter;

   (ii)From 9am New Year’s Day until 9am 2 January 2021/2022 and each alternate year thereafter.

   (f)During Easter as agreed and failing agreement as follows;

   (i)From 2pm Easter Sunday to 5pm Easter Tuesday in even numbered years;

   (ii)From 2pm Easter Thursday to 2pm Easter Sunday in odd numbered years.

   (g)From 9am until 6pm on Father’s Day;

   (h)Telephone communication between 6pm and 7pm each Wednesday;

   (i)At any other times as agreed between the parents.

1. That X’s time with the Father as otherwise provided shall be suspended as follows;

   (a)For one half of the school holiday period as agreed and failing agreement as follows;

   (i)For the first half in even numbered years commencing at the conclusion of the last day of school and concluding at 5pm half way thereafter;

   (ii)For the second half in odd numbered years commencing at 5pm half way through the school holiday period and concluding at 5pm the day before school term resumes.

   (b)From 9am Christmas Eve to 9am Christmas Day each year;

   (c)During New Year as agreed and failing agreement as follows;

   (i)From 9am New Year’s Eve until 9am New Year’s Day 2021/2022 and each alternate year thereafter;

   (ii)From 9am New Year’s Day until 9am 2 January 2023/2024 and each alternate year thereafter.

   (d)During Easter as agreed and failing agreement as follows;

   (i)From 2pm Easter Sunday to 5pm Easter Tuesday in odd numbered years;

   (ii)From 2pm Easter Thursday to 2pm Easter Sunday in even numbered years.

   (e)From 9am until 6pm on Mother’s Day;

2. For the purpose of changeovers, when changeovers are not occurring to and from school, the Mother shall deliver and collect X to and from the Father’s home at the commencement and conclusion of X’s time with the Father.

3. That the Mother and Father refrain from denigrating each other, or allow others to do so, within X’s presence or hearing distance.

4. That the Mother and Father refrain from discussing these proceedings within X’s presence or hearing distance.

5. These orders serve as authority for X’s school to discuss with the Father X’s school attendance and progress, to furnish reports and copies of any correspondence, newsletters or written material produced by the school and distributed to parents and both of the parents are entitled to fully participate in all and any activities at the school or connected with the school.

6. Each parent shall inform the other as soon as reasonably practicable of any serious injury or illness suffered by X whilst in that parent’s care and advise the other parent of any medical treatment X may require.

7. The parents are to communicate with each other via SMS text message and/or email between the hours of 8am and 9.30pm. In the case of an emergency, notice shall be provided as soon as practicable upon the happening of the event.

8. Each parent is to keep the other updated of any changes to his/her residential address, mobile telephone number and email address.

9. That the Independent Children’s Lawyer be discharged.

10. The ICL’s Application for Costs is dismissed.

I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 24 November 2020