Brickley and Lidcombe - [2012] FMCAfam 301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRICKLEY & LIDCOMBE

[2012] FMCAfam 301

FAMILY LAW – Relocation dispute – mother primary carer and attachment for child – mother’s partner relocating to Perth – child having good and important relationship with father and father’s family – Independent Children’s Lawyer and family report writer opposing relocation – consideration of effect on mother and child if relocation not permitted.

Family Law Act 1975, s.60CC

Vigano & Latimer [2010] FMCAfam 660
Goode v Goode [2006] FamCA 1346

Applicant:

MR BRICKLEY

Respondent:

MS LIDCOMBE

File Number:

CSC 473 of 2008

Judgment of:

Burchardt FM

Hearing dates:

27, 28 & 29 February 2012

Date of Last Submission:

29 February 2012

Delivered at:

Melbourne

Delivered on:

19 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms E. Swart

Solicitors for the Applicant:

Lampe Family Lawyers

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms M. Agresta

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

FINAL ORDERS MADE ON 4 MAY 2012

There be final orders made in terms of the Minutes attached hereto marked Exhibit “A”.
The father is not to disclose the residential address of the mother to any person other than Ms Leigh.
Ms Leigh is not to disclose the residential address of the mother to any other person.
The mother is to give not less than two (2) months notice to the father in the event that she wishes to relocate from Perth.
The mother is to inform the father as soon as practicable of any change in the child’s school.
The Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:

Pursuant to section 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

EXHIBIT “A”

IT IS ORDERED THAT:

The mother be permitted to relocate to Perth.
Until the mother relocates the Orders made on 26 September 2011 and 18 November 2011 remain in full force and effect.
The mother and father have equal shared parental responsibility for the child of the marriage namely [X] born [in] 2005 (“[X]”).
The child [X] live with the mother.
The child [X] spend time and communicate with the father as follows:
(a)For a period of 11 nights and each of the Western Australia Easter and September school holidays at times to be agreed and in default of agreement the first half to commence on the first Saturday of the school holidays and to conclude on the second Wednesday of the school holidays;
(b)For one half of the mid year school holidays and in default of agreement to commence on the first Saturday and to conclude on the second Sunday;
(c)For one half of the summer school holidays being the second half in 2012/2013 and each alternate year thereafter and the first half in 2013/2014 (including the whole of Christmas Day) and each alternate year thereafter;
(d)At any time when the father is able to travel to Perth for up to four weeks each year which may be in a block time provided that if such time is in school time he ensures that [X] attends school each day unless she is unwell, upon the father giving 30 days notice in writing;
(e)The block time referred herein should not be during the mother’s school holiday time or for a period longer than two weeks;
(f)In the event that the block time referred to herein to be taken in conjunction with the father’s school holiday time or the block time is longer than one week, the child is to return to the mother from after school until 7.00 pm on each Friday the father is in Perth.
(g)In the event that the father’s block time referred to in paragraph 5(d) shall occur on the child’s birthday, the mother’s birthday or Mother’s Day then the father’s time shall be suspended from after school until 7.00 pm on a school day or from 10.00 am until 2.00 pm if a non-school day or as otherwise maybe agreed.
(h)By telephone, postal and internet such as Skype at all reasonable times as agreed and on [X]’s birthday between 7.30 am and 8.00 am Perth time and on Christmas Day between 8.00 am and 8.30 am Perth time if the child is not spending time with the father and during extended times with the father by telephone at all reasonable times as agreed with the mother. That this communication can include the father’s extended family. The mother shall ensure that such communication is private; and
(i)Such further time or other times as may be agreed.
That when the child is with the father for his time the mother and her extended family be permitted to communicate with the child by telephone, postal and internet such as Skype at all reasonable times including [X]’s birthday between 7.30 am and 8.00 am and between 8.00 am and 8.30 am on Christmas Day. The father shall ensure that such communication is private.
Unless otherwise agreed the mother shall pay for the travel by air for the three school term holiday visits and the father shall pay for the travel by air for the summer school holiday visits.
The mother provide the father with 14 days written notice of her intention to relocate to Perth and provide the father with her departure date, contact details including address, phone number and email address.
That each party keep each other informed of all current contact details including address, phone number including mobile numbers and landline and email address within 24 hours of any change.
Each parent provide the other parent at least seven days’ notice of his or her intention to travel interstate or overseas with [X] with details of the destination and contact details and the mother provide the father with [X]’s passport upon request.
Each parent notify the other as soon as practicable of any serious medical issues regarding [X] or if she is hospitalised and authorise any treating professional to communicate with the other parent. Neither parent engage psychological assistance for, nor assessment of, [X] without the agreement of the other.
Each parent be entitled to attend all school functions ordinarily attended by parents and to receive any information, newsletters, photographs and reports from [X]’s school at his or her expense and at request.
All extant applications be otherwise dismissed.

IT IS NOTED:

That the mother and father agree that the child is able to travel by airplane as an unaccompanied minor.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

CSC 473 of 2008

MR BRICKLEY

Applicant

And

MS LIDCOMBE

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting case and a relocation case. It is a difficult and therefore troubling case in which the competing considerations are finely balanced.
Although there are a substantial number of matters to consider, the essential dispute between the parties arises because the mother, who lives in Melbourne presently with her partner Mr Niles, wants to relocate to Perth with [X], a child born [in] 2005 and now only six and a half years’ old. [X]’s father, Mr Brickley the applicant, is strongly opposed to such relocation.
The family report writer has recommended against relocation and in the ultimate, admittedly by a fine margin, the Independent Children’s Lawyer supports this position.
For the reasons that follow, and notwithstanding very considerable force of all the matters opposing relocation, I have come to the conclusion that [X]’s best interests will be served by permitting the mother to relocate to Perth with her and Mr Niles.

Background

The following nine paragraphs taken from the family report in many ways sum up the nature of the facts in dispute in this case very well:
“1.    The parties met in 2001 or 2002 and began cohabitation soon after and married in 2004.
2.    The only child of the relationship, [X], was born [in] 2004 (sic).
3.    The parties separated under the one roof for some time and divorced in 2008.
4.    The parties lived in a number of different locations, having met while working in the Northern Territory, then moving to Brisbane soon after [X] was born, then returned to the Northern Territory in 2006. In 2007, they moved to New South Wales, establishing a business together. At this time they separated but still maintained a business together, with the mother and [X] moving to Cairns and the father following several months later. After a period there working in the business and other employment, the father spent time working in the [omitted] industry, with a two weeks on, two weeks off roster.
5.    In late 2008, the father moved back to Melbourne. Several months later the mother also moved to Melbourne. They shared a house together for approximately 12 months before establishing separate accommodation.
6.    It would appear that although living together for substantial periods, both as a couple and as independent persons, there are different perspectives on the amount of time spent by each parent looking after [X]. This is noted in affidavit material.
7.    In any event, it appears there was always little question of [X] being primarily in her mother’s care and having time with her father on a flexible and agreed basis.
8.    Although there are different perspectives on the timing of when and how informed, which are contained in affidavit material, it would appear that the issue of the mother relocating to Perth, with [X], came more formally to a head in mid‑2011 and was unable to be resolved through mediation.
9.    The father issued an application to the Court in August 2011.”
That synopsis is in fact an accurate version of the history of the matter although of course necessarily, it leaves aside a number of important matters of detail.

The evidence before the Court

I have read and re-read all the affidavit material and exhibits in this matter. I have had proper regard to all the evidence that was given before the Court.
It is not necessary to go through in detail the evidence about the earlier part of the relationship between the mother and the father. It is excellently and accurately summarised as set out above by the family reporter. Additional to the account given by the reporter, however, I would add a few other observations.
While the parties clearly moved around a lot in the early years of their relationship, it is plain that they were separated by no later than when they were in Cairns, where for a while at least they operated a business together. According to the mother, the separation occurred when they were in [location omitted], New South Wales, even earlier.
At one point the mother’s parents, who otherwise lived in Brisbane, went to Cairns to help her, her father even helping in the workplace with her.
The father left Cairns in late 2008. It is plain from the mother’s evidence that she continues to feel some measure of resentment at this. She says words to the effect in evidence, “When he upped and left us on our own”.
There are two things to be said about this. First, the remark is in my view unduly critical. If the parties had been separated for some considerable period before this, albeit living under the one roof, ultimate departure might not be thought to be such a shock. Second, it is clear that the father was depressed at the time following the death of his father; he was not coping with his work cycles and life generally, and needed the support of his family to improve his health.
The father returned to Melbourne and got his life back on track. Three months later, the mother came down to Melbourne to be with him.
Notwithstanding the ongoing measure of criticism to which I have referred made by the mother of the father’s conduct in leaving her in Cairns, the fact is that she chose to come to Melbourne where he lived rather than to relocate to Brisbane, where her parents had in the meantime themselves returned.
While the decision to come to Melbourne may in part have been driven by economic considerations, it is not possible to set at nought the mother’s conduct in promoting the relationship between the father and the child by this move. It speaks very well for her.
The parties cohabited in a house in [Suburb A], albeit that they continued to be separated under the one roof, it would appear for approximately one year. In late 2009, according to the father, the mother met another man and this was perceived by him to be the catalyst for the breakup of the household.
In any event the father had repartnered with Ms Leigh in December 2009 and shortly thereafter he, Ms Leigh and Ms Leigh’s son [Q], 11 years old, started to live together in [Suburb D]. The mother moved to [Suburb C] and in late 2010 met her present partner Mr Niles.
The father has an extensive family network in Melbourne including his aunt, Ms Dempster, and her husband to whom he is clearly close. They both gave evidence for him in the proceeding.
The mother has no family in Melbourne, although a sister of hers has recently relocated to [Suburb B]. She says she is not close to that sister and I accept that that is so.
It is interesting to note that the mother regards [Suburb B] as not part of Melbourne. She had much to say in her evidence about the difficulties of living in such a large place as Melbourne, apparently in contradistinction to the other places where she has lived. She complained of excessive travel time of 45 to 50 minutes, times which might be thought everyday enough by most Melbourne commuters.
At this point, it is necessary to say a few words about the dispute between the parties as to the extent to which the father has been involved in [X]’s life. The mother made bitter criticisms of the father’s failure to help her when [X] was young, particularly when she was stricken with mastitis. That is but one instance. Put shortly, it was her case that the father had never been significantly involved in [X]’s life.
That criticism continues in the very real sense even until now. It emerged from the evidence given in the trial that the mother regards her conjoined household with Mr Niles as being “[X]’s primary family”. She endeavoured to qualify that remark in re‑examination by suggesting that when she referred to Mr Niles as the primary person in [X]’s life she meant this merely in the sense that he is the person who spends most time with her. It is, however, quite clear that she regards Mr Niles as, in effect, [X]’s true father.
All the evidence suggests that [X] is an extremely intelligent and also somewhat highly strung and difficult child. The mother presented very much in the same way. The mother conceded that she finds it difficult to control herself when dealing with [X] and stated, believably enough in my view, that Mr Niles is very helpful in calming both of them down.
In truth as I find it, having seen both the father and mother over some considerable period in the witness box, the mother for whatever reason continues to hold relatively negative views about the father and regards him as a secondary component of benefit to [X]. In her view, [X]’s best interests are served by being with her and Mr Niles. If the father can be fitted in so be it but if not, then that is just too bad.
The mother’s attitude to the father perhaps emerged most clearly when her own mother Ms M Lidcombe gave evidence by telephone. It was immediately apparent that the Lidcombe family have, and have had for a long time, a generally poor opinion of the father.
At this point it is also appropriate to say a few words about the demeanour of the witnesses. Three of the witnesses (the father, the mother and Mr Niles) are either serving or former [occupation omitted]. Mr Niles and the mother both work at the [organisation omitted] (“[organisation omitted]”) which is where they met and no doubt formed their attachment.
As I observed with counsel for the Independent Children’s Lawyer, I do not know if all three of these witnesses had attended some sort of course during their employment as [occupation omitted] designed to teach them how to give evidence, but if they had not they certainly gave every appearance of having done so.
By this I mean, all three were extremely careful and guarded in their answers and were clearly endeavouring to give evidence that was going to be favourable to the positions for which they contended. All three impressed me as being highly intelligent. Accordingly, one has to approach what they actually said with some measure of caution.
Thus for example, although the father said that the mother was a good mother, and was otherwise praising of her in a number of the answers he gave, the underlying hostility was all too clear.
By the same token the mother’s resentment of the father was likewise palpable.
All three of these witnesses gave answers that were to an extent unresponsive and unconvincing and the mother, in particular, impressed me as being extraordinarily concrete and fixed in her views. Indeed, the same point could be made about the other two ex-[occupation omitted] also. A number of the father’s answers were, in my view, evasive and a number of Mr Niles’ answers were likewise unconvincing.
To return to the issue of parental care, I find that the father has not been as uncaring or as lacking of interest in his daughter as the mother asserts. He may well have gone on holiday once with Ms Leigh during school holidays and not taken [X], but at the end of the day one such occurrence does not make him a failure as a parent.
One has to give the father credit for the time, effort and money he has expended in bringing his matter to Court and pressing it through to judgment. He works part-time on Sundays at [omitted workplace] earning an additional $20,000 per year which, from his evidence, is clearly at least in large part designed to pay his legal fees. A person who does this is not someone who has no interest in his child.
By the same token, however, I think that the father’s position is in part motivated by the interpersonal dynamic between him and the mother. I think that to an extent his desire to see [X] and to insist upon his visitation rights has been accentuated, whether consciously or otherwise, by the mother’s proposal to move to Perth.
The mother first raised the issue of moving to Perth by no later than January 2011. Mr Niles is from Perth and all his family are there and he wishes to return. He has two children (by different mothers) both of whom live in Perth. Mr Niles only moved to Melbourne with his then wife and his daughter [U] relatively recently as a career move. The [organisation omitted] is under threat as an organisation and in any event, he now wishes to return to Perth.
The mother’s position about returning to Perth is interesting. She maintained that she was fully consultative with the father in all things, but found this difficult because as she put it, “it is his way or the highway”. I would say that that is at least as true of her.
What she actually said in evidence was, “The minute it was decided I asked Mr Brickley to come to Perth.” In other words, she and Mr Niles made the decision without any reference to the father and merely told him of it once a set intention had been achieved. Whether or not the father weakened in the middle of the year and gave some sort of permission to go to Perth is open to question. The mother clearly thought he did and the father clearly denies it. It does not matter. The dispute is now before the Court.
I have not dealt in any detail with the evidence of Ms Leigh. She was likewise a highly intelligent and articulate person. It is clear that there is some measure of ill feeling between Ms Leigh and the mother. I note that the mother’s position is that it is not satisfactory for [X] to spend all of Sunday with the father’s family unless the father is actually there. Ms Leigh impressed me as being a person who genuinely loves [X] and who would only look to her best interests, as indeed is the case with all the witnesses from whom I have heard in this case.

The law about relocation

Counsel for the Independent Children’s Lawyer referred me to a passage in the decision of McGuire FM in Vigano & Latimer [2010] FMCAfam 660. That judgment set out at [43]-[45] some of the guiding principles in a way that seems to me to be very helpful. The Court said:
43.    Prior to the amendments to the Act in July 2006 the authorities had set out a preferred approach to determining parenting matters involving relocation. In A v A: Relocation approach the Full Court set out a summary of principles to be applied in determining these matters. The High Court of Australia subsequently in U v U ameliorated the strict approach in A v A (supra). In yet a further subsequent case the Full Court in KB & TC said at [79,699]:
U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
44.    After some academic discussion following the 2006 amendments, it seems clear that the general principles in relocation cases remain valid. In Morgan & Miles (supra) at [80] Boland J says:
It follows from my exposition of the legislation, that earlier core principles:
·    that the child’s best interests remain the paramount but not sole consideration;
·    that a parent wishing to move does not need to demonstrate “compelling” reasons;
·    that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
·    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
·    remain valid.
45. A helpful summary of the law and extraction of the principles in relocation cases was made by Neville FM in Illidge & Norton at [13] where his Honour says, and repeating the same summary from an earlier judgment in F & F:
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders. Drawing from the authorities listed, those principles may be summarised as follows:
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A [91]; cf. P v P, [48]).
b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80], Hayne J, [171]; KB & TC, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145].) Freedom of movement, however, takes second place to the paramount interests of the child.
d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f)   Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact ... with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation” [93]).
g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; KB & TC, [83]-[85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; KB & TC, [84]; P v P, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
·    The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children.
In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt.”
As I have indicated, I respectfully refer to and adopt the summary of the leading authorities set out in this passage. I would only add for my part, however, that each case requires to be considered very much on its own particular facts. This is a question of deciding, after weighing all the relevant considerations, what orders will best promote the best interests of the particular child or children with whom the Court is concerned.

The reasons for the move to Perth

I have already set out in a general way what it is that impels both Mr Niles and the mother to wish to move to Perth. I will now deal with the matters advanced in more detail.
The relationship between the mother and Mr Niles commenced in late 2010. He rapidly became a regular overnight stayer at the mother’s home and moved in in the middle of 2011. It is, as the mother asserts, their desire to marry and have a child, assuming they relocate to Perth.
The mother makes much of the material advantages if they move to Perth. [X] will have contact with Mr Niles’ two children, [V] who is 14 and [U] who is 6. She has apparently met both of them briefly and got on well with them.
It is clear that all or almost all of Mr Niles’ family are in Perth and I fully accept that he has an excellent relationship with both his parents and grandmother and that [X] would doubtless have the benefit of contact with them.
I also note that it is the intention of the mother’s parents to relocate to Perth if she goes there. Perth is suitable for them given its climate. Melbourne is not because of the grandfather’s difficulties with his arthritis in his knees and ankles.
It appears that the maternal grandparents have only been asked by the mother to move to Perth very recently. The mother’s mother said that she was only asked to do so after Christmas. It is clear that this initiative was an opportunistic endeavour by the mother to improve her case. Having heard Mrs M Lidcombe give her evidence, I have no doubt she means what she says. After all, she has already moved to Cairns once to assist her daughter in the past.
Further evidence has emerged that the remaining sibling of the mother also intends to move to Perth in the event that the mother moves there so that her close family would, by and large, be concentrated there too. The mother has planned ahead about moving to Perth and she and Mr Niles have already investigated the possibility (apparently quite achievable) of obtaining a property in South Perth close to the CBD and therefore reducing travel and making life easier.
It was submitted that the lifestyle in Perth would be superior to that of Melbourne. This is a matter upon which minds might legitimately differ. I would accept that the Perth climate has a tendency to be warmer and I would also accept that if the mother obtains property close to the CBD then travel and the time spent on it will be reduced. That would be the case however in Melbourne also.
It would appear that the father has made negative remarks about Perth to [X] in the past. All I would say about all these remarks and observations is that they are extremely subjective. All one can say is that there is no reason to suppose that [X]’s material circumstances simpliciter would be rendered worse were she to go to Perth.
Both Mr Niles and the mother gave evidence about their employment future in Melbourne which they say is complicated by the fact that they work for the [organisation omitted]. I accept their evidence that getting work in the [industry omitted] would be certainly far more difficult as a result of their present employment. Relations between the [organisation omitted] and [organisation omitted] are sufficiently poor and sufficiently publicly known for me to take judicial notice of them.
Nonetheless, as counsel for the Independent Children’s Lawyer submitted, the position can only be seen in a speculative way. Both Mr Niles and the mother impressed me as being highly intelligent and resourceful. They both have well paid work.
Nonetheless, the fact is that Mr Niles will not return to Perth unless he has work and I think it is far more probable than otherwise that if permitted by this Court to do so, he will be in a position to move within a reasonably short period of time.
The mother’s real reason for wishing to move to Perth is her desire to be with her partner. It is after all an eminently normal and reasonable human desire. This, however, does raise one aspect of the case that is a serious concern.
The mother’s attitude towards the father, despite her best efforts to disguise it, is essentially negative. She will not, she says, change [X]’s name. She has not decided whether she would change her own name if she marries Mr Niles. If she marries Mr Niles and changes her name I would be very surprised if she does not at some point seek to change [X]’s name to Niles. After all there would be in many ways grounds to do so.
What the mother also said, however, at one point was that [X]’s having Mr Niles in her life was more important than regular visitation with the father. For reasons I shall set out later, I completely disagree.
Mr Niles furthermore said that the effects on [X] of going to Perth and seeing, on any view, far less of her father would be minimal.
I do not think that it is more probable than otherwise at all that the effect on [X] would be minimal. From the family consultant Mr G’s observation of her, it is obvious that she loves her father and the proposition that to have him depart once more in her life would have no effect on her strikes me as being extremely unconvincing.

The arguments for not going to Perth

Essentially, these are the obverse of those already given. The father points to the relationship he has with the child and says that this is likely to be sullied or at the very least severely affected if [X] relocates to Perth. He has another household of his own with Ms Leigh and [Q] and obviously [X]’s relationship with [Q], which is good, will be itself very significantly impacted if [X] goes to Perth. Similarly, [X] will find it much more difficult either to develop or, to the extent that they obtain, maintain relationships with the father’s extended family.
Although this puts the matter shortly, it is in the end a short point albeit one of considerable intensity.

The family report of Mr G

The family report of Mr G, which followed two interviews with each of the parents and one with each of the partners speaks for itself. As already noted, he accepts that the mother has always been the child’s primary carer. At paragraph 54 Mr G wrote:
“And while it clear that the mother is the most significant attachment in [X]’s life, and that it has been her determination to foster the father/child relationship especially following the father to Melbourne that has been such a positive in [X]’s life, the importance of [X]s connection to the father, his blended family and extended family cannot be underestimated. And whether the fathers wish for more time and involvement has only manifested itself recently (as the mother maintains) or has been something the father has wished but not wanted to push for until now (as the father maintains), the well established reality is that both respective parents, when positively involved in their children’s lives, are the greatest resource available to a child’s ongoing development and well being.” (sic)
Mr G was well aware of the likely difficulties caused to the mother in the event that she was not permitted to relocate. He noted at 57 & 58 that:
“57. … there remain differing perspectives on a number of issues in this matter and the Court may well need to determine the veracity of these accounts, as well as weighing all of the relevant factors in coming to its decision.
58. As stated, in general relocation does has major impacts for children and despite the concern the writer would feel for the mother’s future plans and her sense of being unable to achieve such, in the writers opinion, [X]s relocation to Perth would not be in her overall long term interests at this stage.” (Sic)
Mr G was strongly challenged in cross‑examination by the mother who had plainly gone to a significant effort to research the literature to which Mr G referred. I have, as I indicated I would, read the material referred to. The gravamen of what Mr G had to say was that children lose touch with their other parent and extended family when relocation occurs and that over time a decrease invariably occurs. Indeed he stuck to the proposition that there were no exceptions to this in his experience. Of course that observation must be approached with at least some caution. By definition family counsellors only see those parents who have difficulties. There must surely be some child somewhere who has relocated without their time with their parent decreasing.
The challenges to Mr G’s report by the mother are not, in my view, sustainable. Although Mr G very candidly conceded that he does work with single fathers, it is equally clear that he is no sort of father’s rights activist. His evidence was given in an extremely professional and assured and compassionate way.
So far as the literature is concerned (and I note that Mr G correctly said the literature is merely the background, what needs to be considered is the particular child), it is clear that it reflects major academic and social disputes. When I googled to obtain the article by Braver, Ellman and Fabricius the first thing I noticed was a number of vituperative articles attacking it. From what I have read it would seem clear that the academic literature about the effects of relocation is a highly polarised area. While the insights the research offers need to be considered with respect, for my part I have not read anything in the articles I have read which, in my view, can be elevated to any kind of presumption either in favour of or against relocation generally.
While Mr G stuck to his position under cross‑examination by both counsel and by the mother, I note that he was careful and, if I may say so, correct to point out that the decision as to what should happen in this case is firmly with the Court and not with him. I also note that he said that [X] was quite a resilient child and that this would assist her if she moved. He did, however, also say that it would not be in [X]’s best interests to move if the mother thinks Mr Niles is, as it were, the true father.
At this point, it is appropriate to move to consideration of the statutory pathway indicated by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65], bearing in mind that the issue in the case, at least at this stage, is in some senses a fairly refined one, namely, should relocation be permitted or not? Clearly it is not necessary to examine arrangements on the footing that both parties live in Melbourne unless relocation is denied.

Equal shared parental responsibility

The mother seeks in effect that she have sole parental responsibility in relation to matters relating to [X]’s education and health. The father seeks shared parental responsibility and is supported by the Independent Children’s Lawyer.
While it is true that the mother has the day-to-day care of [X] for most of the time, and this would be accentuated further if she was to move to Perth, in my view there are no proper grounds for not applying the presumption in this case. There are some vague hints of family violence in the materials but these were not pressed at trial and there is nothing to suggest that joint parental responsibility will expose [X] to any measure of risk.
Indeed the mother’s attitude towards the father, which would really provide parental responsibility to Mr Niles, is of itself, in my view, a good reason to apply the presumption in any event.
The next matter to be considered is making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. In the context of relocation at least that is wholly impracticable. Likewise, it is wholly impracticable to provide for substantial and significant time within the meaning of the Family Law Act 1975 (“the Act”). Accordingly, the Court has to consider what orders would best be in the interests of [X].
So far as primary considerations are concerned, there is no question in this case of the benefit to [X] of having a meaningful relationship with both of her parents. The mother’s position as articulated was strongly in favour of the child having a meaningful relationship despite the fact that I find the mother’s position does not wholly reflect her true position. Nonetheless, it is entirely clear that it is in [X]’s best interests to continue the relationship that Mr G observed and which I accept exists.
My criticisms of the mother’s attitude towards the father’s position should, however, also pay proper regard to the fact that the mother’s move from Cairns to Melbourne, when she could just as easily have gone to Brisbane, was at least in large part a result of her desire to maintain and/or develop the relationship between [X] and her father. Proper credit for that needs to be given in considering matters under s.60CC(3) of the Family Law Act 1975 (“the Act”).

As I have already indicated, there is no need to protect [X] from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence.

Section 60CC(3)(a)

[X] has not expressed any views about relocation to Perth that are of any moment. To the extent that she has said anything at all I bear in mind that she is only six years old. The one thing one can say for certain is that her primary attachment is to her mother and that she would doubtless have views if there was any suggestion that that relationship was to be sundered. Nonetheless, nobody seeks to do so.

The nature of [X]’s relationships (section 60CC(3)(b))

Despite the mother’s criticisms, it is clear that [X] has an excellent relationship with each of her parents. She also has an excellent relationship with Mr Niles and with Ms Leigh. The mother’s disdain for the relationship with Ms Leigh is unfortunate and regrettable. Although Mr and Mrs Dempster, amongst others, stand ready to have a good relationship with [X], it would appear that tension between the mother and the Dempsters has developed in recent times. I note that [X] has a good relationship with [Q], and may yet develop good relationships with Mr Niles’ two children.

The willingness and ability of each parent to facilitate a relationship with the other (section 60CC(3)(c))

This matter is more opaque. The parents do not get along as well as they tried to indicate to the Court that they did, nor do they respect one another as much as they sought to persuade the Court. Nonetheless, it is this dispute that has polarised their positions. But for Mr Niles’ desire to return to Perth and that of the mother to go with him, I am quite satisfied that they would be able to, and would, foment the relationship with one another. Whether Mr G is correct and the relationship with the father both in terms of quality and time would be significantly affected after relocation is something that can only be known from experience. I note that the mother’s proposals have at all times proposed relatively substantial amounts of time with the father in the event that she were to move to Perth and I also, as I say, pay regard to the fact that she came to Melbourne to be with him.

The effect of any changes in the child’s circumstances (section 60CC(3)(d))

In many ways this takes us to the heart of the matter. The mother impressed me as being a very strong-willed, determined and somewhat obsessive individual. She was labile throughout the proceeding which is understandable, but the emotional state she was in nonetheless did not conceal a very fixed determination to obtain her own way and something of a concentration upon her own personal needs.
By way of illustration I would point to the extensive research done by the mother in her endeavours to enrol [X] a year early in school. To have a very young child doing Wechsler tests is, in my view, somewhat strange. The mother pursued her point with considerable tenacity and indeed ultimately was able to enrol [X] in a private school. I suspect as the father asserts that this was at least in large part to ensure that the mother could return to full-time work.
Nonetheless, the critical and obvious matter is what happens if Mr Niles returns to Perth and the mother is unable to go because the Court will not let her.
I make it clear that I have no doubt Mr Niles is going to go to Perth. Having acted selfishly in the past (as he himself conceded) he now wishes to commit himself to his children and I accept that he will do so and I accept that he will therefore return to Perth in any event. (There was a very vague suggestion he and the mother might return to Melbourne when [V] enters tertiary education but it is too vague, and too distant, to be given any weight).
The mother will be utterly devastated if this is the case. Such a conclusion accords with common sense and human experience and in any event is one I would reach without any hesitation having seen the mother give her evidence. To put oneself in her shoes for a moment; how would it feel to be told that the man in your life with whom you are desperately in love and with whom you wish to have a child is to go and live thousands of miles away? Such a move would inevitably put the relationship under strain, and from what Mr Niles and the mother said, it seems plain they will not have a child in the event that they are bifurcated in this way, and indeed that would seem to be at first blush a sensible decision. To be told in effect that you either cannot marry and have a child with the man of your choice or at the very least that such a course of action is rendered extremely difficult would be devastating for the mother. She would clearly be appallingly unhappy.
Counsel for the Independent Children’s Lawyer submitted that there was much that was speculative in this case. I accept that that is so but perhaps not in the way counsel suggested. It is true that if I restrained the mother from travelling, Mr Niles might change his mind and stay in Melbourne. He might obtain long-term employment and so too might the mother.
Nonetheless, as I have said, I am quite convinced that Mr Niles will return to Perth so in that regard, the measure of speculation is significantly diminished.
Furthermore, in the event that Mr Niles returns to Perth the mother’s financial circumstances will necessarily be substantially reduced. She will be a single mother and says, and I believe and accept her evidence, that she would have to move closer to the city in order to lessen her travel time. Her evidence about the amount of time it takes to get to work and the hours at which she has to leave [X] at school was convincing.
Thus, in the event that relocation is not permitted there will be a further change of residence and change of school for [X] (who has had plenty of changes already). On the evidence before me, it also a fact that Mr Niles plays a very appropriate and productive role in [X]’s life. Not only does he himself love her, but he apparently is of considerable assistance in helping the mother to cope with [X]’s somewhat unruly personality. This can only be to the benefit of all concerned. Its removal would be a significant disadvantage. The mother impressed me, as I said, as being highly strung and the difficulties she has with [X] will surely only be increased were Mr Niles to be removed. Any such difficulties would only be likely to be augmented by the mother’s sense of anger and sorrow if she is not permitted to relocate.
On the other side of the ledger, however, there is no doubt that relocation would have significant risks and disadvantages for [X]. First, she would be deprived of the time she has with the father and his new family including [Q]. That would unquestionably be to her detriment. Mr G says so and I accept his evidence. Indeed, any other conclusion would be completely counterintuitive. The same goes for such contact as [X] could have with Mr and Mrs Dempster and the father’s extended family although I note that Mr and Mrs Dempster have said they would go to Perth to see her. It must also be accepted that there is at the very least a risk that because of the attitude that the mother and Mr Niles have towards the father as a father, his relationship would be damaged more than just by the other difficulties that such long distance relocation necessarily involves. In other words, the risk of damage to the relationship between [X] and her father would be greater even than it otherwise would be because of this important factor.

The practical difficulty and expense of spending time with the parents (section 60CC(3)(e))

It is immediately apparent that relocation would involve very significant practical difficulties and expense for all concerned. I note the mother has offered to pay half of the costs of travel. I further note that it seems to be agreed between the parties that notwithstanding her very young age, [X] is sufficiently resilient to travel on her own and has indeed or may indeed have already done so. I would wish to hear further submissions from the parties as to any travel arrangements.
On any view, if relocation is permitted the father will struggle economically to fund numerous airfares for [X] to come to Melbourne and/or airfares for him to go to Perth. Even if he does go to Perth, the reality is that he will have to disrupt his family in Melbourne because it is improbable that they would be able to afford to go as well.
One matter that does assist is the father’s generous nine-week leave as a [occupation omitted]. He has more time available to him in which to travel and/or spend time with [X] than would normally be the case.
If relocation were not to be permitted then of course the mother will be significantly disadvantaged in that she proposes to try to maintain the relationship long distance, as it were, with Mr Niles. The costs and difficulties involved with that are equally self‑evident.
The reality is that whichever party is successful in this case, if Mr Niles goes to Perth, as I repeat yet again I think he will, then there are going to be significant costs consequences for the parties and considerable inconvenience also.

The capacity of each of the child’s parents and any other person to provide for the child’s needs

I have no doubt that the mother and Mr Niles are well able to provide for [X]’s needs, although their failure to fully appreciate and promote the role of the father is a matter of considerable concern. I have no doubt that the father and Ms Leigh are likewise capable of providing for [X]’s needs.

The maturity, sex, lifestyle and background of the child and either of their parents (section 60CC(4)(g))

Although I turn my mind to these matters, in my view, they have largely been dealt with already. [X] is young but apparently is resilient. The mother is a tense and somewhat driven personality and she, Mr Niles and the father impressed me as being extremely concrete in their views about matters in a general way.

The attitude to the child and the responsibilities of parenthood (section 60CC(3)(i))

All of the people involved in [X]’s life love her and have appropriate attitudes towards parenthood subject only to the reservation already expressed, more than once, about the attitude of the mother and Mr Niles to the father as a father.

Any family violence issues (sections 60CC(3)(j) and (k))

These are not relevant.

Whether making orders to avoid further litigation (section 60CC(3)(l))

These are designed to be final orders.
In the event that for some unforeseen reason relocation was to be eschewed notwithstanding that the Court permits it, then plainly these would not be effective final orders. It is true that the mother’s relationship with Mr Niles is of relatively short duration but I am not prepared to assume for the purposes of this case that it is more probable than otherwise that the relationship will not continue. In the scheme of human affairs a relationship that has now endured for almost a year and a half is not all that short and the mother and Mr Niles are not infatuated juveniles. They are people of relatively mature age who must be presumed to accurately know their own minds and intentions. I note that both the mother and the father’s relationships have been under strain to an extent in more recent times but that is scarcely surprising given the issues with which they have been confronted.

Conclusion on the relocation issue

Both Mr G and the Independent Children’s Lawyer have expressed the view that relocation should not be permitted. In Mr G’s case it was on the footing that the relationship between [X] and her father would necessarily be damaged by the move. The Independent Children’s Lawyer put a slightly different gloss on the matter emphasising that it was the mother’s and Mr Niles’ attitude towards the father that was, as it was put, “the matter that tipped the scale”. I agree with counsel for the Independent Children’s Lawyer that this matter does indeed stand against the mother and Mr Niles.
Nonetheless several things need to be said. First, I saw both the mother and the father over extended periods of time in the witness box. Having had the advantage of observation, I think that Mr G, for all his sympathy, simply does not appreciate the extent to which the mother will be discombobulated if she is not permitted to relocate. Mr Niles is certainly going and if she does not go with him I think the effects upon her will be absolutely traumatic. Everything she said and everything she has done as revealed by the materials filed in the proceeding points to this inescapable conclusion. Given that the mother is [X]’s primary carer, and attachment, to have her traumatised will only cause inevitable and significant harm to [X], with whom the mother has some difficulties in any event. It is of course not a matter of whether the primary parent should be happy or not simpliciter. It is a matter of considering the particular facts of this case.
It is a hideous thing to have to balance such matters but in the end, I think that if I ruin the mother’s life by not permitting her to relocate, this will be more damaging to [X] than such negative effects as may eventuate in the relationship with her father.
In saying this, it should be noted that I accept that there is a very strong possibility that at least some measure of negative effect will occur. The attitude of the mother and Mr Niles towards the father is a real concern. Nonetheless, one hopes that following the end of this proceeding things may settle down to an extent. I am going to make orders for substantial time during the holidays and for frequent other contact. I have every hope that these will ensure that [X]’s relationship is maintained at an acceptable level.
Even if I am wrong in this regard, however, I am afraid that, in the particular circumstances of this case, I would regard the mother’s well-being as outweighing the harm that would be caused to [X] by diminution in the relationship with her father. That is no small thing to say but there is simply no ignoring the mother’s particular personality. In a sense, this decision rewards her for those very qualities that are unappealing and unattractive but they have to be faced as they are.

The particular orders to be made

From what has been told to the Court during the currency of the proceeding, it appears that West Australian holidays last for 17 days and overlap by at least a week with Victorian holidays. As discussed with counsel for the Independent Children’s Lawyer, I think that [X] should spend 12 days in each of the Easter and September holidays with her father in Melbourne and half of the mid-year holiday. This gives the father the majority of these holidays and appreciable periods of time in Melbourne and still enables the mother to have a break with [X] on her own. The mother will pay the costs of the three term holiday flights and the father the cost of the summer holiday flights. The mother’s household seems better off than the father’s and in any event it is her moving that gives rise to the cost.
I note in this regard that the mother is a person who likes to travel extensively. Whether this will still be possible with a more extended household in Perth might be open to question, particularly if yet another child is added to it.
The father should be entitled further to spend up to four periods of one week with [X] in Perth at his election and upon the giving of 30 days’ notice to do so. I do not propose to make orders for [X] to spend time with Mr and Mrs Dempster but noting that they are obviously affectionate to her I would expect the mother to accommodate them in the event that they were to express a desire to spend time with [X] in Perth.
I will further make orders for regular telephone and/or Skype time. I will give the parties an opportunity to consider these Reasons for Judgment and the draft orders I have prepared so that they may be refined given that the parties will know more about their likely circumstances than I do.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 19 April 2012