Blake and Henson

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAKE & HENSON

[2014] FCCA 1116

Catchwords:
FAMILY LAW – Parenting – Relocation from (omitted) to Brisbane – Mother’s boyfriend lives in Brisbane – whether presumption of equal shared parental responsibility has been displaced – no abuse or family violence – whether best interests of child is served by relocation – what parenting orders are in best interest of the child – application to relocate refused.

Legislation:

Family Law Act 1975 (Cth), ss.13C, 60B, 60CA, 60CC, 65DA, 65DAA, 65DAC, 117

Goode & Goode (2006) 206 FLR 212
MRR v GR (2010) 240 CLR 461

Applicant:

MR BLAKE

Respondent:

MS HENSON

File Number:

SYC 5769 of 2008

Judgment of:

Chief Judge Pascoe

Hearing date:

20 May 2014

Date of Last Submission:

30 July 2014

Delivered at:

Sydney

Delivered on:

29 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Chris Othen

Solicitors for the Applicant:

Fox & Thomas Solicitors

Counsel for the Respondent:

Mr David Blackah

Solicitors for the Respondent:

Swaab Attorneys

Counsel for the Independent Children's Lawyer:

Mr Matthew Wong

Solicitors for the Independent Children's Lawyer:

Mahony Family Lawyers

THE COURT ORDERS THAT:

All previous Parenting Orders related to this matter be discharged.
The parties, being MR BLAKE (‘the Father’) and MS HENSON (‘the Mother’) have equal shared parental responsibility for the child, being X, born (omitted) 2004 (‘X’), with regards to all matters.
The Mother is restrained from relocating the residence of X, from the (omitted) area.
X is to live with the Mother.
X spends time with the Father, unless otherwise agreed, as follows:
During the School Term
a)Six nights per fortnight (commencing after school on Tuesday of Week 1 and concluding before school on Monday of Week 2).
b)The first week of any school term is to be considered as Week 1.
During the School Holidays
c)That X spend the entire Term 1 (Autumn) school holiday period with the Father in even-numbered years.
d)That X spend the Easter break, which usually falls within the Term 1 (Autumn) school holiday period, with the parent in whose care she is during the Term 1 (Autumn) school holiday period of that particular year.
i)However, in the instance where the Easter break does not fall within the Term 1 (Autumn) school holiday period, then X is to spend time with the Father over the Easter break, commencing after school on Maundy Thursday and concluding before school on Easter Tuesday, in even-numbered years.
e)That X spend the entire Term 2 (Winter) school holiday period with the Father in odd-numbered years.
f)That X spend one half of each Term 3 (Spring) and Term 4 (Summer) school holiday periods with the Father as follows:
i)The first half of the holiday periods in even-numbered years; and
ii)The second half of the holiday periods in odd-numbered years.
g)The first half of Summer school holiday period includes the Christmas and New Year holidays (defined as: 24 December, 25 December, 26 December, 31 December, and 1 January).
h)With regard to Order (5) d), in the event that the holiday period is made up of uneven days and cannot be divided equally in half, the Father shall retain X for the additional night.
i)The following special days suspend the arrangements made in Order (5) a) to f). These special days are not subject to ‘make up time’ arrangements, unless otherwise agreed between parties:
i)X is to spend Father’s Day weekend, commencing after school on Friday and concluding before school on Monday, with the Father.
ii)X is to spend Mother’s Day weekend, commencing after school on Friday and concluding before school on Monday, with the Mother.
iii)Public holidays – X is to remain in the care of the parent with whom she was residing on that particular day.
iv)Pupil-free days – X is to remain in the care of the parent with whom she was residing on that particular day.

Change-over

Unless otherwise agreed between the parties, arrangements for the change-over for X to pass from one parent’s care to the other during term-time is as follows:
a)X is to be taken to school by the parent in who is caring for her, or by the nominee of that parent.
b)X’s bags are to be delivered with X to her school on the change-over day and deposited at a location nominated by the school principal.
c)X is to be picked up from school by the parent who will take care of her, or by another person nominated by that parent.
d)A list of each parent’s nominees and their contact details are to be supplied to the other parent and to X’s school.
Unless otherwise agreed between parties, arrangements for the change-over X to during school holiday periods is as follows:
a)Change-over of X is to take place at the kerbside of the Mother’s residence, with all necessary belongings and possessions.
Change-over is not to take place unless the parents or their nominees are immediately present.

Attendance at events

With regard to ordinary sporting commitments and extra-curricular activities in which X is participating, only the parent who has care of X at the time of the event is to attend the activity unless that parent voluntarily invites the other to attend.
With regard to major sporting events and extra-curricular activities (such as a grand final or annual eisteddfod) in which X is participating, the parent who does not have care of X at the time of the event may attend the activity on condition of written notice, no less than seven days prior to the event, to the parent who has care of X at the time of the event, unless voluntarily invited to attend.

Communication and exchange of information

Each party keep the other informed of their address, landline and mobile telephone numbers, and contact details when not contactable on the supplied address/telephone numbers.
Each party be at liberty to communicate with X at all reasonable times, and the parent with whom X is staying at the time is to encourage and facilitate X to answer or make any phone calls from the other parent. X is to have privacy during her telephone calls and is not to discuss parenting issues or be requested to convey messages from one parent to another.
Communication between the parties is to be conducted via electronic mail and mobile telephone text messages, except in an emergency involving X. As soon as practicable, each party is to communicate all relevant information related to X’s circumstances to the other parent. The receiving party is to send a receipt notification of the communication.
During the time that X is with either parent, that parent shall:
a)Respect the privacy of the other parent and not question X about the personal life of the other parent;
b)Respectfully speak of the other parent in X’s presence;
c)Not denigrate the other parent in X’s presence;
d)Not denigrate the other parent’s family in X’s presence; and
e)Take all reasonable measures to prevent others from denigrating the other parent or the other parent’s family in X’s presence.
f)Not discuss these proceedings with X, nor show her any document connected with these proceedings, until she is an adult.
Each party notify the other as soon as practicable in the event of X suffering a serious illness or having suffered a serious accident. In such an instance, both parents may attend to X, and any related medical appointments.
Each party notify the other as soon as practicable any medical or health practitioner’s appointment(s) for X, along with the details of the appointment and the advising physician.
With the exception of emergencies, the parties shall consult each other in relation to which health professionals, including General Practitioners, specialists, and dentists, will treat X. In the event that there is no agreement within a reasonable period of time, but in any event no later than 30 days, the Mother’s recommendation shall prevail.
This Order authorises any treating medical practitioner, dentist, or health practitioner to release X’s medical, dental, and health information to either or both parents.
This Order authorises any school or educational institution, or extra-curricular facility attended by X to release her progress or academic reports, copies of photographs, certificates, and awards to either or both parents.

Travel

Each party is entitled to temporarily travel interstate or overseas with X, for periods of more than three days to less than four weeks. Such entitlement is on condition that the travelling parent issues written notice, of no less than four weeks prior to departure, to the non-travelling parent of the intended trip, specifying:
a)The date and time of departure;
b)The means of transport and all details pertaining thereto, including details of the airline with whom X will be travelling;
c)The intended destination;
d)Contact numbers and addresses for X for the duration of the trip and the intended date and time of return;
e)Times organised for telephone calls with the non-travelling parent whilst away; and
f)That such travel occurs during the time X is scheduled to be with the travelling parent in accordance with these Orders, unless otherwise agreed between the parties.
That upon written notice being given by one party to the other, pursuant to order (20), the non-travelling parent shall, within seven days of the date of receipt of the notice, sign all documents and do all acts and things necessary to cause X's Passport to be made available to the other party including, if relevant, signing all necessary Passport applications and consent forms and providing X’s birth certificates and any other associated documents as required.

Religion

X is to continue to be brought up in the (religion omitted) faith, but she is permitted to attend other religious services.

Therapy and Counselling

Pursuant to s.13C of the Family Law Act1975, the Father and the Mother shall, as soon as practicable, but in any event within three months:
a)Enrol in, and undertake to completion, a “Parenting After Separation” course offered by Relationships Australia.
Pursuant to s.13C of the Family Law Act 1975, the Father shall, as soon as practicable, but in any event within three months:
a)Enrol in, and undertake to completion, a “Taking Responsibility” course offered by Relationships Australia; and
b)Enrol in, and undertake to completion, a “Managing Anger” course offered by Relationships Australia; and
c)Provide to the Mother his certificates of completion of the courses referred to in order (24).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5769 of 2008

MR BLAKE

Applicant

And

MS HENSON

Respondent

REASONS FOR JUDGMENT

This is an application for final parenting orders, filed on 1 May 2013, by the Applicant Father, Mr Blake, (“the Father”) in relation to one child, namely X, born (omitted) 2004 (“X”). The application was originally allocated to the docket of Her Honour Judge Sexton, before being transferred to me for final hearing.
The Respondent Mother, Ms Henson, (“the Mother”) opposes the orders sought by the Father, and instead seeks leave of the Court to relocate with X to Queensland. Final hearing in the matter was conducted before me on 22 May 2014.

Background

On (omitted) 2001, the parties married. Initially, the Mother and Father lived in (omitted), New South Wales, with Mr D, the son of the Mother from a previous relationship. After a turbulent period involving a brief separation, reconciliation, and relocation to Darwin, Northern Territory, the parties finally separated on 1 January 2007.
In October 2007, the Father commenced proceedings seeking the return of X to Darwin after the Mother and X relocated to (omitted), New South Wales. The Mother, in accordance with Interim Orders of the Court, returned to Darwin with X. On 6 June 2008, the dispute between parties was finalised and final parenting Orders were issued by Judge Terry.
The Father consented to the Mother relocating with X to (omitted), and he voluntarily relocated to (omitted).
Order 10 of Orders dated 6 June 2008, prohibited the Mother from relocating “the child’s place of residence from a radius of 45 kilometres from (omitted) without the consent of the father or an order of the Court.”
On 16 June 2010, the parties entered into a Parenting Plan that varied the terms of the previous parenting Orders made by the Court. In substance, this variation created a regime whereby the Mother would care for X eight nights a fortnight and the Father would care for X six nights a fortnight. The Parenting Plan also permitted the Mother to care for X over the entire Autumn 2011 and Winter 2012 school holiday periods. The Father cared for X over the entire Winter 2011 and Autumn 2012 school holiday periods. All other holiday periods were shared on an equal division of time.
The 2010 Parenting Plan was to be reviewed via a further mediation period in January 2011, although it would appear that the parties have been unable to reach agreement since the 2010 Plan. According to the Father’s evidence, this failure to reach agreement occurred concurrently with deterioration in the relationship between the parties.
Since 2009, the Mother has been in a long-distance relationship with Mr J, who resides in Brisbane, Queensland, and shares his home for part of the year with his four children from a previous relationship. At the time of proceedings before me, the Mother had not told X about her relationship with Mr J.
Currently, X continues to spend eight nights with the Mother and six nights with the Father per fortnight. School holiday periods are shared equally and there has not been a reversion to the block periods of the Winter/Autumn break as there was in 2011 and 2012. These arrangements are in accordance with interim Orders made by consent by Judge Sexton, dated 5 July 2013.

Submissions and Evidence

The Applicant Father’s submissions

The Father opposes the Mother’s relocation to Brisbane with X and seeks to retain the status quo.
Submissions filed by counsel for the Father largely relate to the “negative parental dynamics” fostered by the Mother and inability to see past her own concerns so as to be “unable to act in X’s best interests.”
It was put forward that the Mother “could not accept that she might be wrong”, “behaved in a controlling and manipulative manner”, and answered questions in such a way that suggested that her answer was not “necessarily true, or the result of genuine insight into her conduct, but what she felt best suited her case at the time.”
Moreover, it was submitted that the Mother’s boyfriend, brother, and mother were “incapable of offering balance” to the Mother’s “extreme positions when it came to the Father.” Counsel drew the Court’s attention to the affidavit of the Mother’s mother[1] (“the Grandmother”) that demonstrates the Grandmother’s support of the Mother actions and decisions over X’s best interests, which furthers Counsel’s submission that the Mother’s family circle will maintain an “unremittingly negative view of the Father.”
[1] Affidavit of Ms Henson, sworn 9 May 2014 and filed 12 May 2014, at [99]
Counsel for the Father highlighted the presumption at s.61DA(1) of the Act. It was further submitted that the Mother’s application to have sole parental responsibility with regard to health and education did not displace the presumption.
Counsel noted that the presumption could be displaced, pursuant to s.61DA(2) of the Act, if there was evidence of abuse or family violence, but went on to state; “There is no suggestion that X would be exposed to abuse or family violence.”
Counsel outlined the parties’ history of equal shared parental responsibility, detailing the long periods of effective parenting the parents have displayed since 2008, and drew attention to effective and consensual Parenting Plans.
Counsel for the Father reasserted his submission that the Mother’s evidence was created to suit her claim especially as her first application for sole parental responsibility only occurred in 2013, late in this litigation. Moreover, counsel submitted that the Mother’s evidence regarding the efficacy of communication between parties in the past, described as “so difficult”, was inconsistent with her present expectation that the parties will be “model communicators” should the Mother relocate to Brisbane. Further inconsistencies were identified with regards to employment opportunities in (omitted) and the selection of prospective high schools.
Counsel discussed s.65DAA of the Act with regard to whether an equal shared parental responsibility order is to include an order for equal time with both parties and the reasonable practicalities involved in making such an inclusion.
The parties have “plainly determined that equal time arrangements [are] in [X’s] best interests”, confirmed via consensual parenting plans and court orders, and such agreement is supported by the Family Report Writer.
Counsel for the Father submitted that the Mother’s proposal to relocate to Brisbane would make equal time arrangements impractical.
The judgement of MRR v GRR [2010] HCA 4 was referred to as authority for the Court in considering the reasonable impracticalities of an equal shared time order and X’s best interests. Analysis of one limb, it was submitted, should inform the analysis of the other.
Counsel stated that the status quo, which has shared time for both parties, is reasonably practical and upholds the premise that shared time with both parties is in X’s best interests. A variation to the status quo in the manner proposed by the Mother, to relocate to Brisbane, would result in an insurmountable impracticality for the Father and thus fatal for a shared time order. As such, the proposed relocation was said not to be in X’s best interest.
Counsel continued by considering the factors listed in s.60CC of the Act, specifically whether X could maintain a meaningful relationship with the Father should she relocate to Brisbane with the Mother.
Counsel outlined the Mother’s proposal for a shared time arrangement, a complicated and expensive plan that involved both parties making long-distant drives across northern New South Wales, with strategic drop off points, and occasional rented apartments in Brisbane. Counsel concluded that such an arrangement was “necessarily qualitatively less meaningful that the relationship [X] enjoys at the moment with [the Father]”.
Counsel for the Father drew on the Family Report Writer who stated X’s satisfaction with the status quo and that she would likely miss the Father “a great deal” if she were to move away from him.
Counsel indicated that X has loving relationships with the extended family of both parties in the (omitted) locale. Counsel further submitted that “[t]hese relationships are best maintained by X remaining in (omitted).”
With regard to the likely effect of any change to X’s circumstances, counsel for the Father pointed to the hostile environment created by the Mother’s family members with their adverse opinion regarding X’s on-going relationship with the Father. Counsel submitted that there is a “real risk of [relationship] deterioration…even estrangement” between the Father and X should the Mother be allowed to relocate with X. Counsel referred to evidence given by the Grandmother[2] of an incidence in which X’s defence of the Father was smothered by the Mother, resulting in X assuming the Mother’s negative opinion.
[2] Affidavit of Ms Henson, sworn 9 May 2014 and filed 12 May 2014, at [99]

The Father’s counsel mentioned incidents where the Mother failed to comply with communication appointments, a failure to set up Skype facilities, and the fact that X is “jumpy” about using the telephone to speak with the Father when in the Mother’s care.
Counsel submitted that the Mother does little to alleviate concerns regarding the changes that will affect X’s relationships with school friends and farm pets and her participation in regular extra-curricular activities that have been a part of her life since four years of age.
Moreover, it was submitted that the relocation to Brisbane is fraught with unknowns, especially in relation to the living arrangements and relationships that X will be forced to adjust to living in Mr J’s home and with his four children.
Counsel concluded that the effect of change in X’s circumstances would be “negative on the balance of probabilities.”
The capacity of the parents to meet X’s needs and their attitudes to X and their parental responsibilities are such as to have created “a stable, happy childhood…[one] with close relationships” and “doting parents.” However, counsel for the Father submitted, the Mother “makes a proposal to undo this”, based on her “rigid attitude and hostility to the father.” Further, that there is “no benefit for X in the move [to Brisbane], and the detriment [X] would suffer would only be accentuated by the mother’s difficulties in supporting [X’s] relationship with her father.”
Examples of the Mother’s inability to put the best interests of X before her own hostility towards the Father were given by counsel for the Father that included:
i)The giving away of the dog, (omitted).
ii)The refusal to allow X administer medicine or to say goodbye to the ailing pet horse, (omitted).
iii)The “manipulative and cruel” and “egregious” emails sent by the Mother to the Father about how she said X responded to these two decisions.
iv)Whether the Mother agreed or opposed X spending school holidays with either party in complete blocks as had been the case in 2011 and 2012.
v)Final order applications strategically submitted late in this litigation apparently to “sabotage the father’s plans for July 2013.”
vi)The position of the Mother that the school holiday live with arrangements should be altered to allow X to travel with the Father to Darwin at a more convenient time, despite evidence given by the Father that this was inconvenient.
Counsel finished by claiming the costs related to expenses incurred by the Father in supplying two witnesses that were under-used by the counsel for the Mother.
The Mother required the two witnesses to be present in Sydney for cross-examination, however the costs related to their presence were the responsibility of the Father.
As counsel for the Mother released the two witnesses from cross-examination by consenting to the Court reading their affidavits, the Father unnecessarily and unreasonably incurred their costs
Counsel for the Father concluded submissions stating that the status quo should not be drastically disturbed; that the Mother should be prevented from relocating to Brisbane with X.

The Respondent Mother’s submissions

The Mother seeks to be allowed to relocate to Brisbane with X. However, should such an order not be granted that the Father’s share time be reduced to five nights per fortnight.
Counsel for the Mother stated the common ground that X presently enjoys a meaningful relationship with both parties. However, counsel drew attention to the Family Consultant’s finding that a meaningful relationship with both parties would be able to be maintained should X relocate to Brisbane with the Mother.
The Father’s anger issues, counsel submitted, posed a risk of “psychological harm [to X] by reason of the neglect of her emotional needs.” Furthermore, the “extremely high level of parental conflict, poor communication, and denigration” by each parent, but predominantly in the Father’s home, of the other parent, has resulted in X suffering anxiety and distress.
Counsel suggested that protection from these conflict flashpoints could be best managed if the parties were separated by distance.
Counsel further suggested that X should receive counselling, despite such a suggestion being rejected by the Family Report Writer. Such a “protected relationship” as with a counsellor would provide a “safe place for [X] to express herself freely without the fear of parental oversight.”
Counsel also suggested that the Court should be mindful of the Mother’s unhappiness should she not be permitted to relocate to Brisbane with X and how that unhappiness will impact X, who “already has psychological vulnerabilities.”
Counsel for the Mother conceded that the distance between (omitted) and Brisbane was significant and posed a practical difficulty for the Father to spend time with X during term time. However, counsel drew the Court’s attention to the fact that the Father had contemplated the possibility of such an arrangement and had also considered that X should attend a boarding school in Sydney. Further, the Father conceded that he would be able to meet the time commitment and expense available to meet the Mother’s proposed schedule.
It was submitted that the principle issue of the case was the ability of each party to provide for X’s emotional needs, and that both parties were open to criticism on this issue.
However, counsel continued that the Father’s “bullying and belittling behaviour”, insistence of varying changeover agreements, and un-appreciation of the Mother’s reluctance to enter his property in his absence to attend (omitted) the horse was such that it warranted the Independent Children’s Lawyer (“ICL”) to suggest that the Father should apologise to the Mother for his actions and shone poorly on his effective parenting ability.
The Mother’s counsel outlined the Mother’s failures of effective negotiation, prioritising her own needs, being demanding and controlling, however stated that each failure could also be levelled at the Father.
The same mutual deficiencies were also identified by the Mother’s counsel regarding the attitude to parental responsibilities, especially with regard to communication, however the failures were “more so on the part of the Father.”
With regards to family violence, the Mother’s counsel made no suggestion that X had ever been submitted to family violence, notwithstanding the Apprehended Violence Order (“AVO”) Police issued against the Father in 2013.
Counsel submitted that permission to relocate would eliminate the prospects of further applications within the next few years when X’s views would carry greater influence. Moreover, the Mother’s alternative application, that if she is denied relocation, to reduce the share time X spends with the Father from six nights per fortnight to five nights per fortnight, will reduce the opportunities for conflict and associated risks of contravention proceedings regarding the prohibited attendance of the Father at extra-curricular activities whilst in the care of the Mother.
The mother seeks sole parental responsibility in relation to health and education. Counsel drew on examples of decision incompatibility between the parties regarding flu vaccinations, the selection of a high school, and ultimately, whether X requires counselling.
Counsel restated its position that the parties’ relationship is “unlikely to achieve any improvement” and the “conflict is extreme and entrenched.” Furthermore, counsel reiterated the Father’s evidence that the parties’ conflict has been a permanent feature in X’s life and that he did not see any benefit for the parties to attend further counselling. The Mother was quoted as describing the parties’ relationship as “pretty horrific”.
The Mother, if unsuccessful in her application to relocate to Brisbane, seeks to reduce the time that X has with the Father to five days per fortnight so as to reduce opportunities for conflict between the parties.
Counsel submitted that the Mother’s position of restraining the Father from attending “each and every” extracurricular activity is “reasonable”, and should the Mother be permitted to relocate with X, then the Mother would accommodate the Father’s attendance with some advance notice. Furthermore, the Mother would not raise any objection against the Father attending major activities, such as eisteddfods and performances.
The Mother’s counsel responded to various submissions made by counsel for the Father, offering different interpretations and assessments of evidence.
In particular, counsel reinterpreted the submission made by counsel for the Father that the Mother is significantly more caught up in the dispute than the Father by stating that the Mother has more to react to as the Father has done more to provoke dispute. Counsel for the Mother referred to the Mother’s “desperate” appeal to the Police for assistance resulting in the Police issuing an AVO against the Father in 2013.
Ultimately, counsel for the Mother stated that any assessment of the Mother should take into account the “cumulative impact of bullying and harassment on the mother [by the Father] over a period of many years.”
Counsel pointed to the Father’s own evidence that demonstrates the Mother supporting X’s relationship with the Father. Furthermore, that the Court should not doubt the Mother’s evidence that she would continue to support their relationship should she and X relocate to Brisbane.
The Mother’s decision not to inform X of the possibility of relocation to Brisbane was defended as a dilemma, the path chosen was selected so as to protect X from distress of a decision not yet made and preserve X’s relationship with the Father.
Counsel outlined several instances of expressions of anger on the part of the Father, which included his loss of temper towards X, insulting the Mother within X’s hearing, and confrontation with the Grandmother
The likely positive and negative effects of change to X, should she relocate to Brisbane with the Mother, were discussed by counsel. It was submitted that the conflict between the parties was “the most significant issue of [X’s] life.” As such, the “frosty parental relationship” would not change however the exposure to conflict would lessen if the relocation were allowed. X’s short term discomfort in moving to a new environment, like many other children in similar circumstances, would soon be overcome with new friends and quick adaptation to the new environment.
It was submitted that the necessary share time that X will spend with the Father would decrease however that “that should not necessarily be viewed as a negative in [X’s] life.” Conflict has resulted in X being “anxious, sad, and stressed” and that she will not “thrive…nor is she likely to unless something significant changes in her life.”
Counsel finally rejected the Father’s claim for costs in relation to expenses incurred by two witnesses called by the Father. Counsel referred the Court to s.117 of the Act which states that, prima facie, the Court is to have the presumption that each party bares their own costs. In this instance, there is insufficient evidence put on by the Father to displace such a presumption.
Counsel for the Mother concluded submissions stating that the Mother should not be prevented from relocating to Brisbane with X.

Issues in Dispute

Simply put, the issues in this matter are:
i)Whether the Mother should be permitted to relocate to Queensland with X;
ii)If a) is permitted, how much holiday time with each parent is to be apportioned; and
iii)If a) is not permitted, and X is to remain in (omitted), what shared care arrangements are to be put in place? The Mother has indicated that, if not permitted to relocate to Brisbane with X, she would remain in (omitted).

Relevant Law

The legal principles which govern parenting proceedings are set out in Part VII of the Act. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
Section 60B(1) of the Act enumerates the objects of Part VII of the Act as ensuring the best interests of children, in this case X, are met by:
i)ensuring that X has the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of X; and
ii)protecting X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
iii)ensuring that X receives adequate and proper parenting to help her achieve her full potential; and
iv)ensuring that X’s parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of X.
In exercising my discretion as to what Order is in X’s best interests, I must have regard to the factors outlined in s.60CC of the Act, as amended. Although the two primary considerations detailed at s.60CC(2)(a) and (b) of the Act must assume greater importance than the additional considerations at s.60CC(3) of the Act when determining what Orders are in the best interests X, I must consider all the factors before making a determination.
In considering the objects of Part VII of the Act, it is necessary to also have regard to the principles underlying those objectives and the legislative pathways outlined in various Full Court decisions, including Goode & Goode (2006) 206 FLR 212, and the High Court decision in MRR v GR (2010) 240 CLR 461.

Primary Considerations

s.60CC(2)(a) The benefit to X of having a meaningful relationship with both of X’s parents

Whilst X has lived primarily with her Mother, she has spent frequent regular time with the Father, and the Father has been very much part of her life, as have members of the Father’s family. Both parties gave evidence that X has a meaningful relationship with each of them, and this was confirmed by the Family Report Writer as a result of her observations and discussions with each of the parties and with X. This was further confirmed by the evidence of both parties.
In the event that X was permitted to relocate with the Mother to Brisbane, she will no longer spend weekly time with the Father. In fact, during term time, X will spend very little time with the Father at all and her on-going relationship with him is likely to be significantly more difficult. X enjoys many activities with the Father, and has a number of animals to which she is significantly attached living on the Father’s farm. The Family Report Writer expressed the opinion that X needs to maintain a significant ongoing relationship with the Father;
“Although there have been some difficulties in coming to agreement from time to time, [the Father] and [the Mother] have been able to effectively parent X since their separation. There does not appear to be cause to remove [the Father’s] parental responsibility. It is in X’s best interest to have both parents involved in her life including in decision-making.”[3]
I accept her evidence in this regard. Clearly, X would be significantly worse off if she were to lose her close and loving ties with either parent.
[3] Family Report, completed 6 September 2013, at [60]
Based on the evidence, particularly the difficulties with transport between Brisbane and (omitted), I find it unlikely that the current strength of X’s relationship with the Father would be maintained if I were to accept the Mother’s relocation proposal, and that this would be detrimental to X. I give significant weight to this factor.

s.60CC(2)(b) The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The Family Report Writer makes clear that X is suffering significantly as a result of her parents’ inability to put her welfare before their feelings towards each other.[4] During the course of the proceedings, both the Mother and the Father acknowledged the adverse effects on X of their own toxic relationship and behaviours. For example;
“It would seem that both parents may have attempted to encourage X to think that the other parent’s actions were malicious. What [the Mother and Father] need to understand is that this will only hurt X more because she loves them both.”[5]
“They [the Mother and Father] have clearly struggled with the parenting relationship and X seems to have borne the brunt of some of this.”[6]
“Both parents suggest that the other is not putting X’s needs before their own.”[7]
“COUNSEL: Has it occurred to you that X is aware of your personal hostility and dislike of [the Father]?
MOTHER: Of course, she reads my body language if I’m upset, and that’s what worries me. I am very, very aware of that, and that’s why I try very hard not to…show it, which is why I’m trying to separate myself from [the Father], so that [X] doesn’t even read [my displeasure]. I’m more than aware of that.”[8]
“COUNSEL: Do you understand that there is a toll…that’s actually being paid by X for this [conflict]?…That what you had been doing wasn’t good…for your daughter?
FATHER: I understand that, yes.”[9]
[4] Family Report, completed 6 September 2013, at [48]
[5] Family Report, completed 6 September 2013, at [43]
[6] Family Report, completed 6 September 2013, at [48]
[7] Family Report, completed 6 September 2013, at [49]
[8] Transcript, 22 May 2014, page 211
[9] Transcript, 21 May 2014, page 96 and 97
This is clearly a case where the parent’s behaviour and incapacity to put X first is one of the most significant adverse factors in the child’s life.
I take note of the Father’s anger issues. I accept, however, that the Father has never inflicted violence on either the Mother or X. Nor, for that matter, any physical abuse or neglect.
I note the evidence given by the Mother in her affidavit,[10] that her distress from the Father’s apparent bullying and harassment was such that she was prompted to go to the Police. In response, the Police issued an AVO against the Father on 6 June 2013. The Police withdrew the AVO two weeks later, and the issue appears not to have been pursued further in Court.
[10] Affidavit of Ms Henson, filed 12 May 2014, at [106]-[108]
The Father’s difficulties with anger management were canvassed during the proceedings. For example;
“Mr Blake said that there has never been any physical violence between him and Ms Henson but they have had arguments and have shouted at one another. He said that there is no conflict face-to-face.”[11]
“[The Mother] said that he [the Father] used to ‘explode’”[12]
“[The Grandmother] said, however, that [the Father] is frightening when he is angry and that he follows [the Mother] when he is angry. She [the Grandmother] said that [the Father] is a big man and stands over people.”[13]
[11] Family Report, completed 6 September 2013, at [18]
[12] Family Report, completed 6 September 2013, at [24]
[13] Family Report, completed 6 September 2013, at [37]
Evidence was given as to the Father’s anger. X herself told the Family Report Writer; “X thinks that her father tends to get more ‘cranky’ than her mother and said that her father gets ‘cranky’ about once per month.”[14] However, there was no evidence at all of any violence on the Father’s part towards X.
[14] Family Report, completed 6 September 2013, at [41]
The evidence also shows denigration by the Mother and her family of the Father in the presence of X, thus adding to X’s distress.
I was very concerned by the evidence that seemed to show an inability on the part of the Mother to recognise the effect of her actions on X’s psychological welfare. In particular, it was very troubling that the Mother seemed unable to put X’s attachment to the dog, (omitted), and the horse, (omitted), ahead of her own feelings towards the Father. The Mother refused to accompany X to add medication to (omitted)’s feed because the Mother would have to set foot on the Father’s property even though the Father was not there. In taking this action, the Mother ignored the effect on X of knowing that her horse was suffering. Similarly, the Mother gave (omitted) away because it did not suit her to keep him, and in doing so, put her own feelings ahead of the emotional well-being of her daughter.

I do not accept that the incidents involving (omitted) and (omitted) necessarily reflect some sort of controlling desire on the part of the Father, as submitted by counsel for the Mother, although I certainly accept that the Father’s behaviour was insensitive and inconsiderate. In any event, the Mother should have been able to put such concerns aside and concentrate instead on the happiness and psychological well-being of X.
I accept the conclusion of the Family Report Writer that X is not at risk of harm from either parent, despite the Father’s sometimes being “angry” and some issues relating to the Mother’s parenting.

Additional considerations

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

The Family Report Writer makes quite clear that X has a close and loving relationship with both of her parents and that she likes the current relationship. Moreover, X stated that she would be very unhappy if she were to spend less time with the Father. When asked by the Family Report Writer how she would feel if she spent less time with either parent, X replied “terrible”.[15]
[15] Family Report, completed 6 September 2013, at [44]
Although the Family Report Writer says that X is quite young and does not understand the long-term implications of decisions made at this stage of her life, she is also shown to demonstrate a great deal of maturity (maturity well beyond her years) in her assessment of the relationship between her parents and the way she has dealt with the conflict.
The Family Report Writer states that X’s views are not to be the deciding factor. However, because of X’s insight and capacity to assess her parents’ relationship, I give some weight to X’s views.

s.60CC(3)(b) The nature of the relationship of X with: (i) each of the parents and (ii) other persons (including any grandparent or other relative of the child)

Based on the Family Report and the evidence of both the Mother and the Father, I am satisfied that X has a close and loving relationship with each of the parties.
It is also clear from the evidence that X has a close relationship with the Father’s sister, Ms E (“the Aunt”). I note that X spends regular time with the Aunt, who regularly travels to (omitted) to visit the Father when X is in his care
I make special note of X’s relationship with the Aunt, and I accept the evidence of both the Father[16] and the Family Report Writer[17] that this relationship is tender and close. Such a meaningful relationship, with their “special secrets,” nicknames, and the Aunt’s promotion of X’s expressive artistic pursuits is in X’s best interests to preserve for as long as possible.
[16] Submissions on Behalf of the Applicant Father, filed 12 June 2014, at [58]; Affidavit of Mr Blake, sworn 6 May 2014 and filed 9 May 2014, at [153]
[17] Family Report, completed 6 September 2013, at [21] and [36]
I note that X has had limited exposure to Mr J and, as expressed by the Family Report Writer, sees him as the Mother’s “best friend”.[18] X has perhaps chosen to ignore any other aspect of the Mother’s and Mr J’s relationship beyond friendship, even if she was aware of it.
[18] Family Report, completed 6 September 2013, at [33]
I accept the evidence of both the Mother and Mr J that X enjoyed her time in Brisbane with Mr J’s family. However, as was made clear in the evidence of the Family Report Writer, a move to Brisbane would involve very significant readjustment for X and may not be successful due to multiple reasons.[19]
[19] Family Report, completed 6 September 2013, at [57]
In addition, the evidence from all parties clearly shows that X has a close relationship with the Grandmother, with whom she spends considerable time and who is actively involved in her care. This is also a relationship which is in X’s best interests to preserve.

s.60CC(3)(c) The extent to which each of X’s parents have taken, or failed to take, the opportunity (i) to participate in making decisions about major long-term issues in relation to X, (ii) to spend time with X, and (iii) to communicate with the child.

It is quite clear from the evidence that the parties have shared X’s care both before and after separation. Nevertheless, each is critical of the other. The Mother is very critical of the Father. Throughout her affidavit, she describes the Father as having a bad temper and being “threatening” and “controlling” and always wanting arrangements that suit his convenience. Despite the Mother’s concerns, some of which I accept, there is no doubt that the Father has made considerable effort to be a major part of X’s life.
I accept the Mother’s evidence that she is the primary caregiver for X and that she is clearly involved in all aspects of X’s life.
I have previously noted the toxic relationship between the parties. However, the evidence is clear that each party has made very considerable efforts to be an integral part of X’s life, to spend time with her, and to be part of any major decisions which affect her. It is in X’s best interests that this should continue.

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

The Mother is the primary carer for X and pays child support to the Father. The Family Report Writer says that the Father believes the Mother is annoyed with him because of the need to pay child support and says he does not want it to continue. The Family Report Writer notes that this is referred to in the affidavit material of the Mother and Mr J.[20]
[20] Family Report, completed 6 September 2013, at [51]
During the course of the hearing, I raised the issue of child support, but it was not pursued.
I accept that the Mother has carried the major responsibility for X’s financial support, at least in recent years, but I do not conclude that the Father has failed to maintain X. X is in the Father’s care for six days per fortnight and during holiday periods at his expense.

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

This is a significant factor in this case. If X relocates to Brisbane with the Mother, she will spend significantly less time with the Father, the Aunt, and the Grandmother, all of whom are significant figures in X’s life. In addition, X will lose the stability and security of her school, her psychologist, her medical practitioner, her friends, and her pets. She will also lose the security of her home in (omitted) and the familiarity of that area. Together with the security and sense of belonging she so clearly feels at the Father’s farm, especially given her attachment to the animals that live there.
In the event that the Mother is permitted to relocate to Brisbane, X will spend significantly less time with the Father, especially during term time. The logistics are such that even if she does see the Father during term time, X is likely to be exhausted from the journey and spend little quality time with him or her familiar pets. The Family Report Writer stated that it is highly likely X will be upset if she is unable to spend significant time with the Father.[21] I accept the Family Report Writer’s conclusion.
[21] Family Report, completed 6 September 2013, at [55]
Evidence put forward by both counsel highlighted the difficulties of commuting between Brisbane and (omitted). It would necessitate a drive of up to seven hours for X to spend 28 hours (which includes eight hours of sleep on Saturday night) with the Father, with the same seven-hour drive to return to Brisbane. The trip is long and no doubt costly in terms of fuel and driving time. Even if the parties could afford air travel, evidence was that there is no direct connection between Brisbane and (omitted). Flights would involve change-over and waiting at a major hub, such as Sydney Airport. I therefore, find that even the limited time during term-time that the Mother proposes may not occur and certainly is hard to see how the arrangements could be sustainable beyond the short term. I also accept the submissions of both parties as to how physically stressful each trip would be for X.
Further, X has no connection with Brisbane, at least none that was led in evidence, beyond spending a few nights at Mr J’s home. It would be a huge adjustment for X to adapt to a new city, as opposed to her present, relatively rural, environment. Even more challenging will be X’s adjustment from being an only child of two “doting parents” to her new position amongst a blended and already-developed family where she will be one of five children. These issues will be compounded by X attending a new school and needing to develop a relationship with Mr J on a day-to-day basis.
The Mother gave evidence describing her relationship with Mr J, so far, has being “committed long distance.”[22] There is concern as to what might happen to the relationship if she were to be unable to relocate to Brisbane. This is unknown but I do not accept that the relationship will end or be at risk of ending if the Mother is not permitted to relocate to Brisbane.
[22] Affidavit of Ms Henson, filed 12 May 2014, at [255]; Affidavit of Mr J, sworn 9 May 2014 and filed 12 May 2014, at [12]
The Mother’s welfare and happiness are important considerations as X will be affected by her Mother’s physical and emotional well-being. However, in this case, any negative effect on the Mother of not being able to relocate is outweighed by the uncertainties of the relocation and the subsequent negative effect on X.
In summary, as noted above by the Family Report Writer, there are many unknowns in the proposed relocation to Brisbane. The Mother gave evidence to the Court that she should be able to get a better job in Brisbane but even this is unknown. There is very little certainty in the Mother’s proposal, with regards to the strength and long-term success of the relationship of the Mother and Mr J; family; home; school compatibility for X; employment prospects; and the ongoing commitment to make the lengthy journey between Brisbane and (omitted). There is very little certainty for X in the changes and a great deal of risk to her well-being.
I give significant weight to this section.

s.60CC(3)(e) The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.

The difficulty of X spending physical time with the Father has already been addressed above. I am not convinced that electronic communication between X and the Father would work well given the nature of his work, her likely school commitments, and the general relationship between the parties. The unfortunate incident during the camping trip to (omitted), referred to by all parties, clearly illustrates the problems of communication given the uncompromising attitudes of each party towards the other and the disregard shown by both parties towards X’s needs and psychological well-being. This regrettable incident which left all parties unhappy, especially X, is evidence to which I give some weight in my final determination, namely that electronic communication between X and the Father may be difficult if she is in Brisbane and will not be a satisfactory means to maintain personal relations on a regular basis.

s.60CC(3)(f) The capacity of (i) each of X’s parents, and (ii) any other person (including any grandparent or other relative of X), to provide for the needs of X, including emotional and intellectual needs.

The Mother has always been X’s primary care giver. This is clear in the evidence of both parties and the various witnesses called. The Mother spends eight nights per fortnight with X and I accept the Mother’s evidence that she is closely involved in all aspects of X’s life.
X spends the other six nights per fortnight with the Father. Whilst the Mother is critical of the Father’s anger and his overbearing ways, she does not seriously question the Father’s capacity to effectively parent X on a day-to-day basis. I share the view of the Family Report Writer that X’s parents both care for her, are capable parents, and “have done their best to make her happy.”[23]
[23] Family Report, completed 6 September 2013, at [48]
However, there are issues about the capacity of each party to meet X’s emotional needs. It is quite clear from the evidence that in the Mother’s household there is denigration of the Father within X’s hearing.[24] Overall, X seems particularly well informed about the conflict between her parents and this adds to her psychological burden. I find that neither party adequately shields X from their personal conflict and that this is extremely negative for X.
[24] Submissions on Behalf of the Respondent Mother, filed 26 June 2014, at 1 and 8. Submissions on Behalf of the Applicant Father, filed 12 June 2014, at [61]. Submissions on behalf of the Independent Children’s Lawyer, filed 30 July 2014, at [19]. Family Report, completed 6 September 2013, at [41].
X also raised the issue of the Father going “on and on” about certain issues when negotiating with X, such as piano lessons,[25] and that the Father was sometimes “cranky”.[26] The Father did accept that he has issues with anger management. I find that the Father’s issues with anger also adversely impact X.
[25] Family Report, completed 6 September 2013, at [45]
[26] Family Report, completed 6 September 2013, at [41]
I previously noted my concerns about the Mother’s inability to put her own feelings towards the Father aside when dealing with X’s pets. It is quite clear from the evidence that the Mother’s inability to do so added to X’s emotional stress in dealing with the traumatic loss of her pets.
Rational minds may differ as to whether or not it is appropriate for a young child to administer medicine to an ailing beloved pet, and ultimately see the pet so as to say ‘goodbye.’ However, the manner in which the Mother approached the topic was not so much about saying goodbye, but rather not wanting to comply with the Father’s entreaties for X’s visit and aid (omitted) during his absence. The Mother stated in oral evidence that such a request was “emotional blackmail.” Clearly, such obvious and unnecessary squabbling added to X’s emotional distress over (omitted)’s death, a view shared by the ICL.[27]
[27] Submissions on Behalf of the Independent Children’s Lawyer, filed 30 July 2014, at [21]
I accept the findings of the Family Report Writer that X was ultimately able to accept that the actions of both parents were in the pets’ best interest. What is of great concern is that each attempted to portray the actions of the other as “malicious.”[28]
[28] Family Report, completed 6 September 2013, at [41]
I give some weight to these findings.

s.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and either of her parents, and any other characteristics of X that the Court thinks relevant.

The evidence is that X is a well-adjusted child, despite her parents’ seeming inability to put their conflict aside and concentrate on X’s best interests and the very negative effect their conflict has had, and continues to have, on her.
I also note the ICL’s submission as to X’s preference for the rural lifestyle in (omitted). The ICL expressed concern regarding X’s reaction from being “separated from her animals [as she] loves animals and gains significant joy” from them, and that “the rural environment of (omitted) and the Father’s property provide[s] her with the opportunity to indulge this passion.” [29] The ICL further stated that “X has spent much of her life in a rural environment and is an animal lover, which is not to say that she cannot adapt [to an urban environment]. However, the Father’s proposal [of non-relocation] is clearly more attune to X’s hobbies and interests.”[30]
[29] Submissions on behalf of the Independent Children’s Lawyer, filed 30 July 2014, at [33]
[30] Ibid, at [41]
I give some weight to the adverse effects on X of being disconnected from her familiar rural surroundings and her animals if relocated to an urban environment in Brisbane.

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

Each party is somewhat critical of the other’s attitude to the responsibilities of parenthood and I find some justification for these concerns respectively.
In relation to the Mother, I find her denigration of the Father within X’s hearing demonstrates a poor level of insight into X’s needs. This is also demonstrated in her attitude to X’s pets, as the Mother clearly put her own feelings towards the Father ahead of X’s concerns about the welfare of her beloved pets.
I am also concerned, as is the Family Report Writer, that the Mother contemplated a move to Brisbane without telling X about the nature of her relationship with Mr J and thereby allowing X to at least express her opinion or ask questions about the proposal. As the Family Report Writer states, it is likely X at least has some idea of what is going on between the Mother and Mr J and needs the opportunity to “demystify” what is happening around her.[31]
[31] Family Report, completed 6 September 2013, at [53]
Given the many unknowns about a relocation to Brisbane and the very significant impact on X’s relationship with the Father and other important figures in her life, I find it troubling that the Mother appears to give little weight to the significance of X’s relationships with those she is close to in (omitted) and the many difficulties X would face in Brisbane.
In relation to the Father, the Mother states she has felt threatened and intimidated by him. The Father admits in his evidence that his relationship with the Mother is “troubled…with open verbal conflict”[32]. However, the Father also stated that he regrets some of his actions towards the Mother or that that his course of action was “wrong”. During the course of his evidence, the Father demonstrated a willingness to accept the negative impact some of his behaviours were having on X and expressed a willingness to change. I accept that the Father has realised the impact of his behaviour on X and understands the need for change.
[32] Submissions on Behalf of the Applicant Father, filed 12 June 2014, at [16]
I find that the Father’s actions in relation to the dog, (omitted), were high-handed and did not take into account the limitations on the Mother’s ability to take care of the dog. It is difficult not to conclude that the Father’s actions were at least disrespectful and without regard to the Mother’s feelings or situation. This is indicative of the Father’s attitude to the Mother, previously detailed.
Overall, the evidence shows a remarkable lack of sensitivity and maturity by both parties, who obviously love and care for X, as to the effect of their on-going hostility on X’s well-being. The submissions of counsel tend to reinforce this opinion as there is considerable focus on the shortcomings of both parties, and little focus on the best way forward for X; in other words, the parties are more concerned about each other, rather than X.
I give considerable weight to my findings under this factor.

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

It is common ground that neither X, nor any other Family Member, has been exposed to family violence by any party.

s.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X.

In the event that the Mother is not permitted to relocate to Brisbane she has indicated that she will continue to live in (omitted) near to X’s school.

The Mother has sought a change in the existing orders, the most significant of which are:[33]
i)That the Mother have sole parental responsibility of X in all major long-term matters, except for X’s name and her religious upbringing, which will be regarded as equal shared parental responsibility. This order is made on condition that the Mother consults the Father about any major long-term decisions and makes genuine efforts to come to a joint decision, prior to the Mother making them.
ii) That X spend time with the Father five nights a fortnight.
iii) That X attend counselling therapy.
[33] Respondent Mother’s Case Outline, dated 20 May 2014
The Mother has not presented the Court with any compelling reason as to why the presumption to equal shared parental responsibility, enshrined at s.61DA of the Act, should be displaced such that I would order sole parental responsibility to her. Indeed, if I was so minded to acquiesce to her proposal for such an order, it would be likely that the Father would institute further proceedings seeking to set aside my orders. However, I have made specific orders in relation to medical treatment in light of evidence as to previous disputes. The Father’s evidence is that he is happy for the Mother to decide, if he is properly consulted, and the benefits of such an order in reducing conflict between parties is obvious.
I have not changed the time X spends with the Father as the current arrangements seem to be working satisfactorily, and the Mother did not advance any compelling reason for change. In fact, in my view, such a change may actually lead to more conflict.
I have not made orders for X to attend counselling as it is clear from the evidence and from the Family Report Writer that it is the parents who need counselling, rather than the child. It is to be hoped that the parents might change their behaviours so as to reduce the psychological stress on X and I have made Orders for the parents to attend appropriate counselling.
Given the poor relationship between the parties for most of X’s life, I cannot be confident there will be no further litigation. However, with the major issue of relocation settled, and clear orders in place in relation to other matters, the new arrangements should diminish conflict and, as such, the likelihood of further litigation. However, my finding under this factor is not critical to my determination.

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

The Mother does not have permanent full-time work in (omitted) and I accept that jobs in her area of expertise are limited. However, she does have a relatively secure position and appears well regarded by her employer. The Mother felt her job prospects would be improved if she were to live in Brisbane but there was no evidence to support this proposition, and it remains a matter of conjecture.
The Mother relationship with Mr J is also untested in terms of living together full-time. Although the evidence is that the relationship is strong and enduring, it may change with the stresses of living together full-time and managing a large, blended family.
The Father has already relocated from another state once. The Father has a farm with animals and attendant responsibilities. His background is not as a major-city dweller and he is likely to find it very difficult to relocate again so as to be near X. Such a relocation would also impact adversely on his capacity to earn a living.
X is clearly very happy on the farm and with her animals. It is likely that she would greatly miss the rural lifestyle if she were to relocate to Brisbane city.
I give moderate weight to these findings
Turning to the issue of religion raised by the Mother, the Father stated in evidence that he wants X to be able to take (religion omitted) at a (religion omitted) church if she so desires. The Mother opposes this as she believes that to take (religion omitted) will lead to X being confirmed into the (religion omitted) faith. Moreover, the Mother stated in evidence that the parties have always agreed that X would be brought up in the (religion omitted) faith. This was agreed by Father in his evidence.
The matter of which faith X is to practise is, ultimately, a matter for X to decide. If X wishes to be Confirmed into the (religion omitted) Church and receive (religion omitted) then it is a decision that she can make as an adult.
Until then, neither parent is to change her religion, although I see no difficulty in X being exposed to other religions and faiths of all kinds.

Parental Responsibility

Section 65DAC of the Act applies whenever a parenting order provides for shared parental responsibility, and requires each party to consult the other and to make a genuine effort to come to a joint decision about any major long-term decisions concerning X.
Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of X for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that either the Mother or Father or both (or a person who lives with either party) has engaged in:
i)Abuse of X; or
ii)Family violence.
The Court notes that, according to the Mother’s affidavit, in January 2013,[34] the Mother sought an AVO against the Father, which was filed by the Police on 6 June 2013 on behalf of the Mother.[35] On 12 June 2013, the Father was subsequently served with the AVO. On 18 June 2013, this AVO application was withdrawn by Police without explanation.[36] In any event, as mentioned earlier, there is no evidence of family violence or abuse.
[34] Affidavit of Ms Henson, filed 12 May 2014, at [106]
[35] Affidavit of Ms Henson, filed 12 May 2014, annexure 7 at
[36] Affidavit of Ms Henson, filed 12 May 2014, at [108]
The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.[37] In this case, the evidence is that both parents love and care for X and despite their toxic relationship, both have overall managed to care for X quite well. The issue for the future is whether they can each put X’s welfare before their own feelings towards each other. Despite the poor relationship, I therefore find that the presumption, found at s.61DA of the Act, applies. I note that such a conclusion was also reached by Judge Terry.
[37] Section 61DA(4) Family Law Act 1975(Cth)
Accordingly, I do not accept the Mother’s proposition that she have sole parental responsibility for X. Even if there was evidence that may go towards rebuttal of the presumption, I am not convinced of the desirability in this case. The only factor that is contrary to an order for shared parental responsibility is the parties’ own poor relationship. However, the parties have demonstrated an overall concern for X and I do not discount the possibility that, especially with some therapeutic intervention, the parties are capable of improving their co-operation with regard to their parenting arrangements for X’s well-being and happiness.
When an order is made for equal shared parental responsibility, s.65DAA(1) of the Act requires the Court to consider whether making orders that X should spend equal time, or if not equal time, substantial and significant time, with each party would be in her best interests, and whether such an arrangement is reasonably practicable, having regard to the factors set out in section 65DAA(5) of the Act. [38] These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on X, and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[39]
[38] See also MRR v GR [2010] HCA 4
[39] MRR v GR [2010] HCA 4
In this case, both the Father and the Mother have been intimately involved with the care and welfare of X. Despite their own problems, the parties have been able to implement a significant and substantial share-time arrangement for X that has worked well. Whilst I agree with the Family Report Writer that the parties’ communication skills, or lack of them, needs considerable improvement. I am of the opinion that both parties have, over the course of these proceedings, gained some insight about the negative effect of their on-going conflict on X and there is a motivation to change for the better.
I note the Father’s submissions; “The Father demonstrated real insight into the impact of the parties’ disputes upon X, and demonstrated a change in approach. The Father was able to acknowledge how past communications may have caused hurt.”[40] This attitude shift is further reflected by the ICL; “The Father in his oral evidence, demonstrated a willingness to accept responsibility of past wrongs and to move on constructively. The Father gave appropriate concessions as to his conduct and demonstrated insight into how his conduct would have adversely affected the Mother and by extension X.”[41]
[40] Submissions on Behalf of the Applicant Father, filed 12 June 2014, at [6]
[41] Submissions on behalf of the Independent Children’s Lawyer, filed 30 July 2014, at [20]
On behalf of the Mother, her counsel’s submissions indicate that “she accepts that the accusation of being demanding, not negotiating, prioritising person convenience and about controlling could equally be levelled at her” and that X should not have to choose between her parents.[42]
[42] Submissions on Behalf of the Respondent Mother, filed 26 June 2014, at 4
X currently spends substantial and significant time with each of her parents and as previously outlined this has worked satisfactorily. It is practicable given the proximity of the parties and, clearly, it has proven to be feasible.
For all of the circumstances it is appropriate that there be equal shared parental responsibility and that X spend substantial and significant time with each parent. My Orders reflect this.

Discussion and Determination

It is apparent from the evidence and submissions that X's Mother and Father have both been a major part of her life. I agree with the Family Report Writer that it is in X’s best interests for that to continue. The same close involvement of the Father, the Aunt, and the Grandmother would not be possible if X relocated to Brisbane.
I understand the Mother’s desire to pursue her relationship with Mr J and I accept the evidence that Mr J is a good man and a very positive influence in the Mother’s life.
At this stage it is not clear how X would react to the Mother re-partnering. She simply has not been told.
As outlined previously, I have significant concerns for X’s well-being if the Mother relocates to Brisbane, including:
i)A very real down-grading of time spent with the father and the potential for X to lose the close and significant relationship she has with him, especially has she gets older and busier, and less willing to spend large amounts of time in transit.
ii)The loss of X’s attachment to her rural pursuits and pets.
iii)The risk that X’s loving relationships with the Aunt and the Grandmother will be compromised by distance.
iv)The potential risk to X if the Mother’s relationship with Mr J breaks down or X is unable to comfortably fit into Mr J’s household and established family arrangement.
v)The many unknowns in relation to schools, extracurricular activities and hobbies.
I accept that the Mother genuinely believes her life will be better in Brisbane, where she will have the support of Mr J and better employment prospects. Indeed, this may very well be true. However, I am not persuaded that the Mother’s plans have been well thought through in terms of X’s best interests. The Family Report Writer refers to too many unknowns and this simply poses too great a risk for X. In short, the benefit to the Mother relocating to Brisbane is outweighed by the uncertainties and potential detriments to X’s well-being.
Accordingly, I have decided that X will continue to live in (omitted) so that she can continue the close involvement of both her parents in her life week to week. Such arrangements would not be possible if she were to move to Brisbane.
I am not satisfied that an order for equal time would be in X’s best interests. X has always lived primarily with the Mother, whilst spending regular significant time with the Father. Equal time may be negative for her even if the parties’ relationship improved. I note that neither parent has sought an order for equal time, nor is the proposition supported by the Family Report Writer. I am however satisfied that X will benefit from a substantial and significant arrangement as recommended by the Family Report Writer.
The Mother seeks[43] that, should her application to relocate to Brisbane with X fail, the existing arrangement for X to spend time with the Father be varied as follows:
[43] Respondent Mother’s Case Outline, dated 20 May 2014
i)That X spend time with the Father nights days per fortnight, commencing after school on Wednesday of Week 1 and concluding before school on Monday of Week 2
ii)Father’s Day weekend, commencing after school on Friday and concluding before school on Monday.
iii)Mother’s Day weekend, commencing after school on Friday and concluding before school on Monday, will suspend the Father’s time with X without make up time.
iv)That X spend one half of each Term 1 (Autumn) and Term 4 (Summer) school holiday periods with the Father as follows:
i.The first half of the holiday periods in even-numbered years; and
ii.The second half of the holiday periods in odd-numbered years.
v)That X spend the entire Term 2 (Winter) school holiday period with the Father in odd-numbered years.
vi)That X spend the entire Term 3 (Spring) school holiday period with the Father as follows:
i.The first half of the school holiday period of 2014; and
ii.The entire school holiday period in even-numbered years.
vii)That X spend the Easter break, which usually falls in Term 1 (Autumn) school holiday period, with the parent in whose care she is at the time.
i.However, in the instance where the Easter break does not fall within the Term 1 (Autumn) school holiday period, then X is to spend time with the Father over the Easter break, commencing after school on Maundy Thursday and concluding before school on Easter Tuesday, in even-numbered years.
viii)Christmas falls within Term 4 (Summer) school holiday period and X will spend time with the parent in whose care she is at the time.
The Father seeks[44] that, should his application to prevent the Mother from relocating with X to Brisbane be successful, the existing arrangements for X to spend time with him be varied as follows:
[44] Applicant Father’s Case Outline, filed 16 May 2014
i)That X spend time with the Father six nights per fortnight, commencing afterschool on Tuesday of Week 1 and concluding before school on Monday of Week 2.
ii)Father’s Day weekend, commencing after school on Friday and concluding before school on Monday.
iii)Mother’s Day weekend, commencing after school on Friday and concluding before school on Monday, will suspend the Father’s time with X without make up time.
iv)That X spend the entire Term 1 (Autumn) school holiday period with the Father in even-numbered year.
v)That X spend the Easter break, which usually falls in Term 1 (Autumn) school holiday period, with the parent in whose care she is at the time.
i.However, in the instance where the Easter break does not fall within the Term 1 (Autumn) school holiday period, then X is to spend time with the Father over the Easter break, commencing after school on Maundy Thursday and concluding before school on Easter Tuesday, in even-numbered years.
vi)That X spend the entire Term 2 (Winter) school holiday period with the Father in odd-numbered year.
vii)That X spend one half of each Term 3 (Spring) and Term 4 (Summer) school holiday periods with the Father as follows:
i.The first half of the holiday periods in even-numbered years; and
ii.The second half of the holiday periods in odd-numbered years.
viii)That X will, in the first week of term, commence living with the parent with whom she did not spend the last week of the previous school holiday period.
The Family Report Writer recommended that X’s existing time with the Father for six nights per fortnight should continue. I agree with this recommendation. I also agree with the Family Report Writer’s recommendations as to school holiday periods.
Given the on-going difficulties between the parties, I shall also make orders that X’s bags are to be delivered to her school office on the days she changes over from one parent’s care to the other.
I also make a number of other Orders designed to reduce conflict between parties, such as attendance at certain therapy groups.
In making my final Orders, I am guided by the objects and principles of the Act to which I have already referred. Having regard to all these matters, I am satisfied that the orders I should make are in X’s best interests.

Costs

In his submissions, the Father’s counsel sought an order for costs with regards to the expenses the Father incurred relating to two witnesses, Ms A and Ms L. I accept the argument of the Mother that each party to this litigation is to bear their own costs, pursuant to s.117 of the Act. The unnecessary expense was not due to any punitive intent and so the presumption not to award costs is not displaced. Accordingly, there should be no order as to costs.

I certify that the preceding one-hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe

Associate:

Date: 29 August 2014

[2014] FCCA 1116

29 August 2014

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Family Law

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